Spousal support consists of a payment or payments made from one spouse to the other following the breakdown of a marriage or other cohabiting relationship. Spousal support is governed by the Divorce Act in instances where the couple was previously married and by the Family Law Act if the couples were cohabiting but not married. The purpose of this support is to ensure that the recipient spouse continues to enjoy the wealth accrued by the other spouse during the duration of the marriage or cohabitation.
Support payments are typically made in the form of monthly payments, but may also be made in any of the following manners:
- A single lump sum payment
- Periodic payments, such as monthly or yearly payments
- Series of lump sum payments
If there are children of the marriage or relationship, child support takes precedence over spousal support, to ensure that the parents continue to provide for their children. Provided that a parent is able to pay both child support and spousal support, the factors to be considered in determining whether spousal support should be paid include:
- Length of cohabitation
- Toronto domestic contracts or other agreements previously entered into by the spouses
- Roles of the spouses during marriage
Marital misconduct is not considered a factor in determining whether a spouse is entitled to support. Unlike child support, spousal support may be deducted on the payor’s income tax return and it is considered taxable income to the recipient spouse.
The Divorce Act currently only provides support to married spouses and does not cover common law marriages where the spouses were cohabiting, but not formally married. The purposes of providing spousal support under the Divorce Act include:
- Recognizing economic disadvantages caused by a marriage or subsequent divorce
- Fairly divide the financial responsibilities associated with raising any marital children
- Relieving any economic hardship that arises as a result of the divorce
- Encourage increased economic self-sufficiency over a period of time
The Department of Justice released federal spousal support guidelines that may be used in determining the amount of spousal support in divorces regulated by the Divorce Act . Unlike the Child Support Guidelines, these guidelines are not mandatory. However, they are often used by courts in determining the amount and duration of spousal support payments. These factors include:
- Length of the marriage
- Each spouse’s income level
- Work history of the spouses
- The number of children
Unlike the Divorce Act, the Family Law Act defines a spouse as one who has been married or who has cohabited continuously for three years or more in a permanent relationship where there is a child involved. The child may either be the natural child of the parents or an adopted child. This definition applies to both heterosexual relationships and same-sex partners. The purpose of spousal support under the Family Law Act is for one partner to provide support to the other partner in accordance with need, if he or she is capable of doing so.
Factors that courts consider in determining the amount and duration of child support under the Family Law Act include:
- Current assets and income of both parties
- Expected future assets and income of both parties
- Age and health of the parties
- Length of cohabitation
- Each spouse’s ability to contribute to his or her own support
- The ability of the supporting partner to provide support to the other spouse
- The standard of living maintained throughout the cohabiting relationship
- Ability of the dependant partner to become self-supporting in the future
- Necessity of the dependant spouse to stay at home to care for the children during the cohabitation
- Effect of the cohabitation on the dependant spouse’s earning capacity due to domestic responsibilities
- Contributions made by one spouse to the other’s education and/or career potential
Spousal support is often modified or terminated following the breakdown of a relationship for various reasons. Support can be modified if there is a change in circumstances following the initial support order. The burden of demonstrating a change in circumstances is on the spouse applying for the modification.
Support can be terminated in any of the following circumstances:
- Spousal support is set to end at a specified date
- The supporting spouse dies
- Reconciliation of the spouses
- Remarriage or cohabitation by the dependant spouse
Spousal support is often set to end at a particular date in order to encourage the dependent spouse to become self-supportive. Courts are prevented from extending spousal support payments past this specified date, unless there has been a change in circumstances that resulted in economic hardship to the dependent spouse.
Not all spousal support arrangements include an end date, however. In instances where the dependent spouse has provided a great deal of child care, domestic services, and other assistance to the other spouse in his or her career, an indefinite spousal support order is often granted.
If the support spouse dies, support payments typically terminate. However, if the support order specifically states that the support is binding on the supporting spouse’s estate, the dependent spouse can receive additional support from the supporting spouse’s estate following death.
In the province of Ontario, if the spouses reconcile, the spousal support order is considered void. If, after the reconciliation, the spouses decide to separate again, they must enter into another spousal separation agreement.
Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer