Understanding Spousal Support, and Does it Apply to Me?
By Lauren Conti | November 14, 2022
Lisa and Jack were married for 12 years. They have two children, ages 5 and 10. During the marriage, they moved to a small northwestern Ontario community when Lisa got a promotion. Jack was unable to find full-time work as a teacher, and became a supply teacher instead, for a significantly lower income. However, the arrangement gave the family flexibility around child care because Jack was able to pick and choose his work assignments, and Lisa was able to travel for work and advance her career. Jack requested the separation after Lisa discovered he was having an affair. Is he entitled to spousal support?
What is spousal support?
Spousal support refers to money that one spouse pays to another upon separation or divorce (you may have also heard it called “alimony”). The primary legislation that governs the law about spousal support in Ontario are the Divorce Act and Family Law Act, along with the Spousal Support Advisory Guidelines (SSAGs). This legislation sets out the “rules” with respect to spousal support in Ontario. The SSAGs, specifically, are used to help determine a range of spousal support, to assist a judge (or in negotiation) in deciding what amount of support, if any, is owed in a particular case.
The law as it relates to spousal support is not significantly different for married and unmarried (“common-law”) couples, although the length of the common-law relationship does matter, as explained below. The Divorce Act applies exclusively to married spouses, while the Family Law Ac and SSAGsmay be applicable to both married and unmarried spouses.
In order to determine both the “entitlement” and the appropriate “amount” of spousal support in a matter, various factors must be considered. Here’s what you need to know.
Who is entitled to spousal support?
The first consideration is whether or not the test for “entitlement” to spousal support has been met. There are two main grounds for entitlement:
Need: A spouse qualifies for needs-based support if their income is lower than the income of their former spouse by a “material” amount. The idea is that the standard of living of the spouse with the lower income should not be drastically different than that of the other party, or the parties’ “accustomed standard of living” when they were together.
Compensatory: A spouse qualifies for compensatory spousal support if the spouse’s career or earning potential was negatively impacted due to family obligations (such as taking parental leave), and/or as a result of the spouse’s contribution to the other spouse’s career and earning potential over the course of the relationship.
The reason for the separation or divorce, or the party who asked for it are almost never factors in determining spousal support, which is a common misconception.
How long and how much?
The following factors are considered when determining the length of time and amount of spousal support:
Obligation to become self-sufficient: The recipient has a legislated obligation to become financially self-sufficient within a reasonable time after the separation (depending on the unique circumstances of the matter). This means that the earning potential of the recipient will be a factor considered in determining what spousal support, if any, is owed. If the recipient is not earning the amount they are capable of earning, the court will consider the reasons why, along with what would be a reasonable length of time to allow for the recipient to reach that potential for earning their maximum income. These factors may include health, education, retraining, child care responsibilities, and many others that are unique to their situation. If the recipient does not earn the income that they are capable of earning, or does not reach this potential within that reasonable period of time in their circumstances, it is possible that their income could be imputed (in other words, the judge would attribute an income amount to the spouse, whether or not that spouse is actually earning that amount of income). Another possibility is that the spousal support they are receiving could be terminated, reduced, or become time-limited.
Delay in claiming support: There is not a specific time limit in the legislation for making a claim for spousal support, but a delay in making a claim may have a negative impact on the recipient’s ability to get it, and it may not be awarded. If you have recently separated and may have a claim to spousal support, you can notify the other party in writing (such as an email, letter, or text message) that you will be seeking spousal support and income disclosure from them, in order to have a record of your intentions. Of course, it is best to get legal advice regarding these issues and the approach you should take as soon after your separation as possible.
Length of relationship: This is one area where there is a distinction for married and non-married spouses. A non-married couple must reside together in a “relationship resembling marriage” (what is often referred to as a common-law relationship) for a minimum of three years in order for a spousal support obligation to exist. There is no such minimum period of cohabitation for married spouses. And, if the common-law couple has a child together, the three-year rule does not apply either, and a spousal support obligation can arise immediately. And, typically, for both married and non-married partners, the longer the spousal relationship of the couple, the longer the obligation to pay spousal support will exist. For parties who live common-law and then marry, it is the total period of co-habitation (not just years married) that is relevant.
Incomes: The higher a payor’s income is, and the greater the disparity in the parties’ incomes, the higher the amount of monthly support will typically be.
Child support: The amount of spousal support will also be affected by whether or not the parties have children together and if child support is paid by either party to the other. Generally speaking, as the amount of child support is reduced or becomes a non-factor (for example as children grow up and support is no longer payable for them) the amount of spousal support owed increases (if it remains payable).
Ability to pay: The court will also consider whether or not the party with the higher income has the ability to pay spousal support, along with any reasons for an inability to pay. The payor’s other obligations (such as child support owed to children from a prior relationship, debt repayment associated with the marriage or relationship, or costs associated with having parenting time with the children of the marriage – for example, if they live in a different jurisdiction) may all be relevant factors that a court will consider. Your lawyer will review the various factors that might affect a party’s ability to pay spousal support.
So, getting back to the scenario at the start of this post, it is very likely that Jack would be entitled to spousal support, for the following reasons:
- As to Jack’s entitlement to spousal support, the parties were married for 12 years, and have children together;
- With respect to the amount of spousal support, Lisa likely earns significantly more income than Jack does (i.e., which would impact Jack’s “need” and Lisa’s “ability to pay” and/or their respective “standards of living”);
- Also, Jack supported Lisa’s pursuit of her career to the detriment of his own career and earning potential (i.e., which influences the issue of “compensatory” spousal support);
- The amount and duration of spousal support payable by Lisa to Jack would depend on the specific details of their situation (including their incomes, as well as their parenting and child support arrangements);
- It is important to note that the reason for the separation and the fact that Jack requested it would almost certainly be irrelevant in these circumstances.
To understand your rights and obligations around spousal support, it’s essential to talk to a family lawyer. Contact Henderson Family Law to set up an appointment.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.