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.

If you are going through a separation or divorce, here are five things you should know about spousal support in Ontario:

  1. What is spousal support?

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. 

  1. Who is entitled to spousal support?

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. 

In Ontario, a spouse may be entitled to spousal support if they were:

  • Married;
  • Lived together as a couple for at least three years; or
  • Were in a relationship of some permanence and have a child together.

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:

  • The spouse claiming support could not establish or build their own career because of their responsibilities during the relationship. This type of claim (also known as a compensatory claim) is often made when one spouse stays home to take care of the children or household responsibilities while the other spouse establishes their own career or business);
  • The separation or divorce leaves the spouse claiming support in need of financial help and the other spouse has the ability to pay. This type of claim (also known as a non-compensatory claim) typically arises where a spouse has trouble meeting their basic needs following the breakdown of their relationship, but can also arise in situations where a spouse will experience a significant decrease in their standard of living.
  • The parties have an agreement that entitles them to spousal support upon separation or divorce. This type of claim (also known as a contractual claim) arises where a couple has a domestic contract, like a marriage contract or separation agreement.

If you think you are entitled to spousal support, you must ask for it.

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.

  1. How is spousal support calculated?

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.

There are many factors that go into calculating the amount and duration of spousal support payments, including:

  • The roles each spouse played during the relationship;
  • Whether the spouses have children together and who is primarily responsible for caring for the children;
  • If there is a big difference in the spouses’ incomes;
  • The age of each spouse;
  • The mental and physical health of each spouse;
  • The ability of the recipient spouse to be financially self-sufficient
  • The ability of the payor spouse to pay.
  1. Does behaviour impact spousal support eligibility?

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.

  1. When does spousal support end?

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. 

Contact The Family Lawyers At NULAW In Toronto For Trusted Guidance On Spousal Support Matters

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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