FAQ: Spousal Support
Q. Who has the right to spousal support?
The right is a statutory right and it is that of married spouses, unmarried spouses and same-sex partners. Married or former spouses (divorced) may access the right to spousal support under either the Divorce Act or the Family Law Act, while unmarried spouses or same-sex partners, can only access the right to spousal support under the Family Law Act. The criteria for determining whether a spouse is entitled to spousal support are essentially the same under both the Divorce Act and the Family Law Act.
Q. How does a court determine whether a spouse is entitled to spousal support?
Generally, a court will take into consideration the conditions, means, needs and other circumstances of each spouse, including, the length of time the spouses cohabited; the functions performed by each spouse during the cohabitation; and any order, agreement or arrangement relating to the support for either spouse.
The objective of the spousal support award, whether made under the Divorce Act or the Family Law Act, should be to recognize economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; to apportion between the spouses the economic burden of caring for and supporting any child of the marriage; to relieve any economic hardship on the spouses arising from the breakdown of the marriage; and to promote or assist the spouses to become economically self-sufficient and contribute to their own support within a reasonable period of time.
Q. When should I apply for spousal support?
As of January 1, 2004, there is no limitation period on a spouse’s claim for spousal support. However, the Limitations Act, 2002, which came into force on January 1, 2004, should be referenced, because prior to January 1, 2004, there was a two (2) year limitation period on a claim for spousal support and this limitation period will still apply to cases where the spouse’s separation occurred more than two (2) years prior to January 1, 2004.
Q. How does the court determine the appropriate amount of spousal support?
While the Child Support Guidelines are legislated, we do not have legislated spousal support guidelines. There are advisory guidelines, known as the Spousal Support Advisory Guidelines, which are frequently referenced by both the courts and lawyers, however it is not mandatory that they be implemented or much less referenced in the determination of a spouse’s obligation to pay spousal support. The advisory guidelines are helpful in assessing the amount of spousal support to be paid, if any, and the duration of spousal support. The advisory guidelines take into consideration circumstances where the spouse’s have children and where they do not. Most lawyers practicing family law have the advisory guidelines built into their family law computer software and can generate calculations of quantum and duration of spousal support based on the parties’ financial circumstances. For more information on the advisory guidelines and the rationale employed in the determination of the quantum and duration of spousal support, the advisory guidelines should themselves be referenced. There has also been exhaustive material written on the advisory guidelines.
Normally, the quantum of spousal support will depend primarily on the recipient’s need and the payor’s means. As a general rule, the longer the marriage, the greater the dependency of one spouse on another for economic sustainability, the longer the duration of spousal support. Spousal support may be paid by way of a lump sum payment or periodic payments over a determinate or indeterminate period of time.
Q. Is spousal support subject to tax?
Spousal support payments are tax deductible for the payor and taxable to the recipient. There are, however, circumstances in which lump sum payments of spousal support are neither tax deductible for the payor nor taxable to the recipient.
Q. I need both child and spousal support from my spouse. Can I get both?
It must be noted that where a court considers both an application for child support and spousal support, child support will be given first priority. Spousal support will not be ordered where it would ultimately prevent the payor from paying child support.
Q. What if I begin receiving spousal support and then secure full-time employment at a sustainable income?
Spousal support may be varied where there has been a change in circumstances.
Enforcement of Support
Q. Who is responsible for enforcing child and spousal support orders?
Child and spousal support orders are enforced through the Family Responsibility Office unless the parties withdraw from this process on written notice to the Family Responsibility Office. In addition to court orders, written agreements between parties respecting child or spousal support may also be filed with the Family Responsibility for enforcement purposes. If the parties choose to withdraw from the Family Responsibility Office, they are not barred from re-applying to the Family Responsibility Office for enforcement purposes. However, the Family Responsibility Office will charge both parties with an administration fee.
DISCLAIMER: The foregoing material is not intended to and should not be taken or relied upon as legal advice by the author. It is general information provided by the author to the reader with a cautionary note to seek legal advice with respect to any questions or concerns the reader may have in respect of their own family law issues or the content of this material.