Spousal Support: the basics

The first important point about spousal support is that it is gender-neutral. Husbands and wives can pay and receive spousal support, and do so every day in our court system.

Spousal support can be determined by agreement or by court order. Before you come to any agreement about support, you need to talk to your Toronto divorce lawyer to make sure you have a good understanding of the ramifications of any agreement that is reached. And please do check out all of the other sections on our website related to spousal support.

How is someone in Ontario entitled to spousal support? What does he or she need to be able to prove? To be entitled to support you have to prove that you are a dependent spouse. In Ontario, a dependent spouse is someone who is actually substantially dependent upon their spouse to meet their reasonable needs. As a practical matter, though, in our court, a dependent spouse is someone who makes less money than their spouse, regardless of whether they are the husband or the wife.

Once a spouse proves that he or she is entitled to support, the next considerations are: How much spousal support and for how long? There are two sources of guidance that the law gives the judge. One is a list of factors for the court to consider in the Family Law Act and the Divorce Act. Those statutes and lists of factors can also be found on this website.

The list includes just about anything that you can imagine: earning capacity, earning history, income and expenses of each spouse, debts and assets of each spouse. Fault is not one of the factors; who did what to whom in the marriage is irrelevant.

The other assistance judges and individuals have are the Spousal Support Advisory Guidelines. Each judge in each individual case is allowed to make his or her own decision about the appropriate amount and length of support; however the federal government created the advisory guidelines to give some structure to the latitude judges are allowed. In practice, judges usually do the calculation based on the factors described before and then look at the SSAG guidelines to see if the amount makes sense.

There is great uncertainty in Ontario about when spousal support should end. Courts have grappled with the interest to keep spousal support until the recipient spouse is self-sufficient. It is hard to know when this will happen. Therefore, apart from cases of short marriages, the courts usually grant indefinite spousal support awards. When we negotiate spousal support, we often include other time limits. You can negotiate many terms and provisions in a separation agreement.

When you are negotiating spousal support, another very important thing to take into account is tax. Spousal support is taxable income to the person who receives the support and it’s a tax deduction to the person that pays spousal support. This is different from child support which is a non-taxable event: there are no tax consequences whatsoever with child support. So before you come to any agreement about spousal support, you should take taxes into account. Make sure that you understand the amount you’ll be receiving or paying, net of taxes, to ensure it is an amount you can live with.