Spousal Support

*Please note that the information on this website is intended as a guide only. Each case is unique and context-specific. Legal advice should be sought in regards to your family issue. Provincial and territorial legislation on family law policy and legislation will differ from province to province. If you or anyone you know requires legal advice, an experienced family lawyer should be contacted. If you have any questions not covered on this website, send an email enquiry to info@nanda.ca and we’ll be sure to get back to you shortly.

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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