Spousal Support

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Once a couple divorce or separate, the amount of money paid by one spouse to the other is known as spousal support.

Usually, the spouse making the higher income pays spousal support to the other spouse with the other income. In spousal support, the gender of the spouses is not relevant.

The Divorce Act outlines the spousal support rules for all married couples who divorce. This Divorce Act is federally regulated and applies across all Canadian provinces.

The Federal Act does not govern common law couples who are not married and married couples who are separating. In these cases, provincial rules apply.

Who is eligible to get spousal support?

Married and common-law couples are eligible to receive and pay spousal support. Spousal support is allowed for unmarried couples who

  • Lived together for a minimum of three years
  • Should have had some semblance of permanence in their relationship and had a child together

What is the purpose of spousal support?

Spousal support is vital for many reasons including:

  • Sharing financial costs for childcare
  • Acknowledge a spouse’ contributions to the relationship
  • Help to relieve financial issues
  • Support a spouse so that they are able to start contributions to their own support
  • Balance any economic advantage or disadvantage to a spouse resulting from ending of the relationship

In cases where a spouse is giving up their job to do full-time childcare, self-support may not be possible immediately. It is advisable that, spouses become self-supporting as soon as possible.

How do you get spousal support?

The separation agreement expressly mentions the spousal support clauses after both the spouses have negotiated and agreed upon them. Other issues like child support, property division, custody and access arrangements are also discussed upon at the same time and included in the separation agreement.

Mediators and Lawyers assist the spouses in reaching an agreement. If it doesn’t work out, an arbitrator or a judge has to step in to resolve the situation.

How do judges decide on spousal support?

Judges decide upon spousal support issues after considering many diverse factors.

In different couples, differing factors may be considered to come into agreement on the final spousal support situation. A judge may consider the financial need of a spouse or recognize the need to compensate one spouse for unpaid work they did in the duration of the relationship.

Along with the need for spousal support, the amount and duration of paying the support are also decided by the judge based on the following factors:

  • The relationship duration
  • If children were borne of the relationship then what are their custody arrangements
  • The spouses’ respective roles during the relationship
  • The spouses’ ages
  • The financial situation of each spouse

Spousal Support Advisory Guidelines (SSAGs) are also referred by the judges while making their decision on spousal support.

What is the tax treatment for the Spousal support payments?

All spousal support payments made according to written agreements or court orders are taxable in hands of the recipient and given for the support of the recipient. They can be claimed as tax deductible by the payer in certain situations including:

  • Amount to be paid to the spouse or common-law partner is clearly stated in the order or agreement
  • All previous and current child support payments are completely paid out

Priority of child support

In cases, where child support payments are mentioned in the court order or agreement, child support payments have priority. All payments are first applied towards child support. Payments exceeding this amount is deemed to be spousal support for the recipient.

The spouse can claim spousal support as a deduction only once child support payments are completely received by them. If child support amount is outstanding and not received, it will be carried forward for the forthcoming year’s support payments.

Spousal Misconduct

In a divorce, the reasons for ending a marriage have no impact on one spouse’s responsibility to support the other. No-fault divorce law exists in Canada.

Child and Spousal Support

As per the Divorce Act, in cases where the child and spousal support have been requested, the judge will prioritize child support. Supporting the children needs to be the primary responsibility of both parents.

Child support payments

As per the court orders and agreements, all support amount not specifically stated to be for the recipient is considered as child support payment.

The child support payments are not included in the recipient’s income and are not tax deductible by the payer.

How We Can Help

At Nanda & Associate Lawyers, our capable divorce lawyers help in making effective representation for spousal support. They understand your specific circumstances and provide tailored and customized solutions for each of them. Many legal complexities exist in formulating spousal support plans, and an experienced divorce lawyer can help you to navigate better.

Our Mississauga Divorce Lawyers are available for a no-obligation free consultation. Come and experience our quality legal counsel and personalized care we give to each client.

Who is a spouse?

A spouse is either of two persons who are married to each other under section 2 of the Divorce Act. Only someone who is married (or common law – cohabiting together for a certain period of time) and part of a divorce proceeding is eligible to obtain an order for support, or any other relief under the Divorce Act. The same definition of a spouse is given in the Family Law Act of Ontario.

What does legislation say about spousal support?

The Divorce Act deals with spousal support in section 15 states that:

“In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including:

  1. the length of time the spouses cohabited:
  2. the functions performed by the spouse during cohabitation; and
  3. any order, agreement or arrangement relating to support of the spouse or child.”

Section 15 (6) of the Divorce Act clearly states that:

“the court shall not take into consideration any misconduct of a spouse in relation to the marriage” when considering whether or not to order support.”

Section 15 (7) the Divorce Act sets out four fundamental objectives of any order for spousal support and states that any such order should :

  1. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  2. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8) [ which deals with child support ];
  3. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  4. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.”

The Family Law Act also deals with spousal support. Section 30 provides that:

“every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.”

In section 33 (8) the Family Law Act sets out the purposes of any spousal support order and provides that:

“an order for the support of a spouse should,

  1. recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
  2. share the economic burden of child support equitably;
  3. make fair provision to assist the spouse to become able to contribute to his or her own support; and
  4. relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).”

Section 33 (9) of the Family Law Act states that:

“In determining the amount and duration, if any, of support in relation to need, the court shall consider all the circumstances of the parties, including,

  1. the dependant’s [recipient’s] and respondent’s [payer’s] current assets and means;
  2. the assets and means that the dependant and respondent are likely to have in the future;
  3. the dependant’s capacity to contribute to his or her own support;
  4. the respondent’s capacity to provide support
  5. the dependant’s and respondent’s age and physical and mental health;
  6. the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
  7. the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
  8. any legal obligation of the respondent or dependant to provide support for another person;
  9. a contribution by the dependant to the realization of the respondent’s career potential;
  10. if the dependant is a child,
  11. the child’s aptitude for and reasonable prospects of obtaining an education, and
  12. the child’s need for a stable environment.”

What is interim support?

Interim support is an order of support that lasts until the court makes a final order. Interim support is meant to assist the party receiving the support- interim support does not provide support for all issues. Interim support is defined in the same manner in the Divorce Act and the Family Law Act.

Interim support is often the foundation if a settlement of parties disagree or cannot come to a consensus during litigation. As such, an interim support order is a serious issue which warrants high attention.

An order for interim support is generally made at the initial processing stage, and as such, each party is given a platform to make full answer and defense of their claims to support and (or) lack of a claim. Family law lawyers treat interim support orders very seriously – and so should you.

How is spousal support calculated?

In Ontario, a claim for spousal support is made under the Family Law Act. The courts will ensure that the same principles apply whether the application is under the Family Law Act or the Divorce Act.

Initially, both parties will have to create a Financial statement (including a budget) to illustrate what the income and expenses of each party are. This ensures that spousal support is calculated fairly.

The court will look into the standard of living of the spouse requesting the support at the time of the separation. The courts will also determine the efforts the parties have made to provide for themselves and each other. In some cases, the court will impose a duty for one party to support the other party for a specific period of time (for upgrading skills in which additionally schooling is required or new job training). In other instances, the court may impose an income on a party if they feel that that party can use their skills and experience to obtain a better job than is currently held. This is called “imputing” an income on a party even if they have not actually earned that income.

Next, the court will consider the living arrangement of each party. In the event that one party is living with another party who is not contributing fairly to the joint living expenses, the court may take this third party’s income into the earning ability to calculate spousal payments.

In the event that there is not enough money to allow both of the parties to live in the same comfort that they had lived in prior to the separation, a court will issue out an order it deems is fair.

Is there a connection between child support payments and spousal support payments?

There is no connection between child support payments and spousal support payments. A spousal support payment is an entirely different calculation as compared to the child support payments, and as such, they mark two separate obligations.

The question of how much support a child should garner and how much support a spouse should obtain is a negotiation that is left for the two parties to decide. After May 1997, an agreement made after this date stipulated that child support payments are not tax deductible. However, spousal support payments are tax deductible regardless of this agreement.

Courts realize that stipulations under The Child Support Guidelines may mean that there is not enough money available to pay spousal support once child support is paid. In the event that this occurs, the former spouse will have to wait until child support payments have ended to determine if the issue of spousal support should be raised.

Are spousal support payments taxable?

Yes. A party who receives spousal support after separation (whether married or common law) must include spousal support income in his or her own income if it is paid on a periodic basis – according to the terms of the court order or written agreement.

Depending on the agreement, payments made from one taxpayer for the benefit of the other (or a child) but paid to a third party (private school, camp, private lessons, baby sitter, club membership, etc) may be treated as the same support payment and taxed as if it is paid to the recipient of the spousal support. To ensure that the payments are taxed accurately, specific wording is required for the court order/agreement between the parties.

It is easy to confuse spousal support payments and child support payments. However, spousal support payments are taxable and child support payments are not taxable.

Will a bankruptcy affect spousal support payments?

No. Support payments are not affected by bankruptcy. Support payments remain in full force and effect. While bankruptcy will clear other debts, bankruptcy has no effect on spousal support payments.

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