Who’s entitled to spousal support?
Under the Divorce Act, the answer is easy. A person is entitled to spousal support if they’re one of two persons married together.
Under the Family Law Act, you’re eligible for support if you fit into any of the definitions for a spouse, which includes:
- two people married to each other, or a person who entered into a marriage in good faith on the part of the person claiming to be a spouse, even if that marriage turns out not to be legal
- a person who cohabited with the other person for at least 3 years (common-law spouse), or
- a person who was in a relationship of some permanence with the other person if the two of them are the natural or adoptive parents of a child
You can even be a spouse for the purposes of The Family Law Act if you’re in a polygamous marriage, if that marriage was legal in the place where it took place.
A person can also be “spouse” for tax, health plan, pension, and other purposes depending upon the particular definition for those situations. Sometimes the rules for these might say you have to cohabit for a period more than 3 years.
What does a judge consider when making decisions about spousal support?
For practical purposes, the Divorce Act and the Family Law Act don’t have any meaningful differences in terms of judges’ decisions. There is different wording, but it would be rare to find a situation where the result would be different under one piece of legislation than under the other. This is now particularly the case because of the wide-spread application of the principles set out in the Spousal Support Advisory Guidelines (SSAG)
The Divorce Act
The Divorce Act applies in cases where the separating couple was legally married. Section 15.2 of the act says that separated spouses are entitled to both definite and indefinite support and sets out certain objectives for a court to consider when making a separation order.
The judge must consider the condition, means, needs and other circumstances of each spouse, including how long they’ve cohabited, the functions performed by each during the cohabitation, and any order, agreement, or arrangement relating to the support of either spouse.
Section 15.2 (6) of the Divorce Act sets out certain objectives:
- To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.
- To apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any children of the marriage.
- To relieve any economic hardship of the spouses arising from the breakdown of the marriage.
- And in so far as practicable, to promote the economic self sufficiency of each spouse within a reasonable period of time.
No one objective is more important than the others and different objectives will apply in different circumstances. You should go over this with a lawyer to be sure you’re focusing on the most appropriate objective for your situation.
Another thing to keep in mind is that the courts have developed additional concepts to help a judge set the proper amount and duration (length) of spousal support. These include whether the spouse seeking support had contributed to the level of the payor’s income. For example, if one spouse worked and financially supported the relationship while the other was in school, or if one spouse left their job when the other got transferred for work. In those cases the spouse seeking support may now have a lower level of income because of what they did for the other party and support can be ordered to make up for that contribution to the other person’s career. This is called “contributory support” and may result in a support order being increased or extended longer than usuaal.
A last thing to keep in mind is that s. 15.2 (5) of the Divorce Act is clear that a party’s conduct isn’t a factor in working out how much support they may be entitled to. Conduct – or misconduct – doesn’t factor in. The court doesn’t increase support because of how “bad” the other party acted or vice versa.
The Family Law Act
The Family Law Act applies when determining the spousal support for any eligible spouse under the act.
Section 30 of the Family Law Act says that every spouse has an obligation to provide support for himself or herself and for the other spouse in accordance with need, to the extent that he or she is capable of doing so.
To help the judge, the act also says, s. 30 (8), that a spousal support order should:
- recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
- share the economic burden of child support equitably;
- make fair provision to assist the spouse to become able to contribute to his or her own support; and
- relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
The Family Law Act says in s. 30 (10) that the in figuring out the amount of support a spouse should receive it should do so without regard to the conduct of either spouse.
The Family Law Act does allows the court to consider “a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.” But in practical experience, this has been interpreted as being behaviour so bad and unconscionable that this section is barely used.
What’s a temporary, or “interim” order for support?
Where a court can order spousal support at a trial, it can also order it for the period between the beginning a proceeding and end of the trial.
Basically, an order for temporary support is to provide support to someone until a full hearing can take place. As a result, it often doesn’t include everything that a final order would.
However, in the clear majority of cases, the matter never ends up going to court. So the temporary order is usually the only order a judge will make and typically becomes the basis of a settlement. For that reason, these are often hotly contested.
What are the Spousal Support Advisory Guidelines and how do they fit into spousal support orders?
The Spousal Support Advisory Guidelines (SSAGs) provide a guideline for judges in making decisions about spousal support. They’re different from the Child Support Guidelines, which aren’t actually “guidelines” but are mandatory. That said, judges now in every province start any decision for spousal support by looking at what the SSAG suggests. Almost all support arrangements negotiated by lawyers are within the 3 ranges provided by the SSAG and if a judge intends to make an order that is outside of the SSAG range and suggested duration, they need to set out their reasoning in writing.
In Ontario, our Court of Appeal has said that a judge is required to look at the SSAGs in each case before making a decision. If what the judge is about to order falls within the ranges set out by applying the SSAGs, great. He or she can go ahead. But if the order is going to be different from what the SSAGs suggest, then the judge has to give written reasons explaining why they’re not being followed. That tends to result in the SSSAG being applied in almost all of the cases, although there certainly are exceptions.
The SSAGs were prepared by a group of academics with input from lawyers and judges and sets out a formula to decide what a person will receive in spousal support depending on their situation. It’s a very detailed and well thought out document.
Did we say detailed? There are lots of details.
The details result in different formulas depending upon whether there are or aren’t children. They take into consideration how long the parties have lived together, the ages of each party, each party’s income, and, if there are children, which one is paying or receiving child support. They make adjustments for taxes and various forms of income and they show how much of the family’s net disposable income (what’s left after paying taxes and child support) each person will end up with.
The SSAGs give a low range, mid range, and high range figure for each set of circumstances. It’s no surprise that most orders fit into the mid range area. And they also set out a suggested range for the duration of support unless they say that the duration is “indefinite”.
The formula is quite complicated, so judges and lawyers use software programs, notably the Supportmate program from DivorceMate, to help in making the calculations.
Mysupporcalculator.ca is a basic, free, program you can use to get a pretty good idea of what the ranges will be based on the details of your situation. This isn’t as detailed or robust a program as the ones judges and lawyers use, but it will give you a figure that’s quite close.
What’s the connection between child support payments and spousal support payments?
These are two different things. They’re calculated differently.
Child support is calculated first and doesn’t take spousal support into consideration. Who’s paying child support, and how much, are factors to be considered when calculating spousal support. In some cases, there’s just not enough money to pay spousal support after child support has been ordered. In those cases the spousal support will begin, or increase, once the child support ends.
Is spousal support taxable?
Yes. The money a person receives for spousal support is added to their income and they have to pay tax on it.
And, obviously, spousal support paid by the payor is tax deductible. The money someone pays in spousal support is reduced from the total taxable income of the person giving the money.
There are a number of tax rules that affect this. For example, paying the spousal support to a third party (like a mortgage payment) removes the ability of the payor to deduct the payment from their income for tax purposes. In this case, the support recipient doesn’t have to include the payments in their income for tax purposes.
Finally, parties can choose to make the payments in after-tax dollars if that makes sense to them. That way, the recipient doesn’t need to declare them as income but the payor can’t deduct them. There are cases where that may make good sense. But talk to a lawyer or tax accountant before you choose this approach.
What effect does bankruptcy have on spousal support payments?
None. Bankruptcy doesn’t affect spousal support payments. In fact, bankruptcy wipes out debts, probably making it easier to make the monthly payments.
Lawyers often hear about cases where the support payor gets behind in the support payments and threatens to go bankrupt if the recipient doesn’t co-operate. But that’s silly. Life will be easier for both of those parties if the payor declares bankruptcy.
Spousal Support Calculator
MySupportCalculator is a fast way to get an idea of the amount of spousal support to be paid as set out in the Spousal Support Advisory Guidelines. Using this site will give you a good general area of the support obligation.
The actual calculation used by lawyers and judges could be different as the full version of the software involves additional input. MySupportCalculator is made available by a software company DivorceMate. Most family law lawyers (and judges) have access to full DivorceMate software and can give you a more accurate figure for spousal support. But to get a pretty good idea, this is a really great site.
The Spousal Support Advisory Guidelines (SSAG)
This isn’t either “legislation” or a “regulation”. It’s a report prepared by a two really knowledgeable and experienced academics. The report sets out to make spousal support more predictable and consistent, based upon existing law in Canada. It considers a bunch of factors provides a range of support figures (Low, Middle, & High) to be paid (the “quantum”), with a suggestion for how long the payments should be (“duration”). Lawyers and judges need special software to do the calculations.
This report has been accepted by the Courts of Appeal in most provinces and is extremely influential in the decision-making process. Trial judges must show that they have considered the Guidelines and must set spousal support within the given ranges and duration shown in the SSAG – or set out in written reasons why they’re making some different order.
No discussion about spousal support can take place without knowing what the SSAG suggests.
CLEO’s Separation and Divorce
This site looks at spousal support for married or common-law partners who are divorcing or separating, including the factors that affect whether spousal support must be paid, in what amount, and for how long. It also contains information about spouses who are on social assistance, and how to enforce payment of support. It also provides detailed information on where to find legal assistance.