Ending a relationship is rarely easy. Emotions tend to be high, and it can feel like there is a lot of uncertainty around what comes next. One of the highest sources of conflict and tension for separating and divorcing couples is sorting out their finances, especially when it comes to spousal support.
Higher income earning spouses can feel frustrated by the thought of continuing to financially support their ex after separation or divorce. Alternatively, it is very likely that spouses who earn a lower income or spouses who are not working (due to household responsibilities, lifestyle choices or health reasons) feel scared about their financial futures and security.
In Ontario, spousal support is available to both married and common-law spouses. Married spouses may bring a claim for spousal support under the Divorce Act. Common-law spouses must make their claims under Ontario’s Family Law Act.
In Ontario, common-law relationships and marriages are viewed as economic partnerships. The purpose of spousal support in Ontario is to help a spouse become financially self-sufficient after a relationship ends. It is also used to prevent a spouse from experiencing serious financial difficulty due to the breakdown of the relationship
Spousal support refers to payments that are made by one spouse to the other spouse after the couple separates or gets a divorce. Spousal support payments are paid by the higher-income earning spouse to the lower-income earning spouse.
Not every relationship gives rise to spousal support rights and obligations. Just because a relationship ends or one spouse makes less money than the other, does not automatically mean that spousal support must be paid.
Ontario law sets out specific eligibility criteria that a relationship must meet before one spouse is entitled to spousal support payments from the other.
Once this first set of criteria is met, the spouse making the claim for spousal support must prove that at least one of the following also applies to their relationship:
In Ontario, spousal support is not automatically given when a couple separates or divorces. A spouse who believes they have a valid claim for spousal support must ask for it. This can be done while negotiating the terms of a separation agreement or by filing a claim in court.
Unlike child support (which is calculated using a set formula), spousal support calculations have more variables that depend on a couple’s unique relationship.
The federal Spousal Support Advisory Guidelines (SSAGs) provide advice on how to calculate spousal support in Ontario. The SSAGs are not mandatory, but they are often used as a frame of reference when negotiating or litigating spousal support rights and obligations.
The SSAGs provide two formulas for calculating the amount and duration of spousal support payments: (1) the “With Child Formula” and (2) the “Without Child Formula”. As the name suggests, the “With Child Formula” applies to situations where the spousal support is being paid in addition to child support and the “Without Child Formula” is used where no child support is payable.
Generally speaking, a spouse’s behaviour does not impact their entitlement to spousal support. This means that a spouse who is entitled to support does not lose their entitlement simply because they had an affair, is alienating the children, or is being difficult during the separation or divorce process.
Depending on the situation, spousal support may be payable for a definite or indefinite amount of time. In some cases, a separation agreement or court order may state that spousal support is indefinite and will end when the recipient spouse dies. In other cases, the agreement or court order may include a review date when spousal support will be reassessed based on the parties’ then circumstances.
There are some situations in which spousal support rights and obligations may be reconsidered. This arises in situations where there is a material change in circumstances that was not foreseeable when the spousal support agreement or court order was made. In such situations, the burden is on the spouse asking for the change to prove that there has been a material change in circumstances.
Determining if and how much spousal support you are entitled to or expected to pay when your relationship ends can be complicated. As you can see, there are many factors that come into play. The calculation is not always simple or straightforward. If you are going through a separation or divorce and think that you may have a claim for or may be required to pay spousal support, it is worthwhile to speak with a lawyer who can explain your legal rights and obligations.
We have extensive experience helping our clients reach fair and efficient solutions to all of their separation and divorce issues, including spousal support and property division. Contact us at 417-481-5604 or online for a consultation.
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