An Introduction To Spousal Support

Marriages are not only an emotional union, they are an economic partnership and when a marriage breakdown occurs, one spouse may owe financial support to the other. This is known as spousal support.

Some key facts about Spousal Support

  • Spousal support is not limited to the breakdown of a marriage, it may be payable when a common-law relationship comes to an end
  • Gender is not a considered factor when determining the recipient party.
  • The higher-income spouse pays the lower-income spouse but spouses can come to an agreement on how much spousal support should be paid. Either by way of a Separation Agreement (see our blog post about Separation Agreements here), or a Court can order and specify the amount of the support.
  • The Court determines the length and amount of spousal support obligations by considering the recipient spouse’s needs based on their financial circumstances and any hardship experienced during and upon the breakdown in the relationship. Additionally the Court takes into account the paying spouse’s ability to pay.
  • Spousal support payments can be paid via a lump-sum, in monthly installments, or a combination of the two.
  • The Divorce Act, a federal statute, is applicable throughout Canada for spouses who have legally married and who are now attempting a divorce.
  • Provincial legislation (the Family Law Act in Ontario) applies to those marriages that are separating but not divorcing, or for common-law relationships.
  • There is no time limit for when a spouse must bring forth a claim for spousal support.
  • If there has been an agreement or court order for spousal support and a spouse is looking to enforce payment or attempt to collect arrears, there is no applicable limitation period.
  • However, the longer the delay in claiming or enforcing spousal support, the harder it becomes. If there is no reasonable explanation for the delay, the Court may react adversely and may conclude there is no need for support, or less support is necessary.

The Goal of Spousal Support

Spousal support is intended to aid a spouse who has become financially dependent and reliant on the other spouse over the course of their relationship. In addition to compensating the career sacrifices one spouse makes, spousal support is designed to recognize the non-monetary contributions that a spouse has made to the marriage. Such contributions include the time and effort used in raising children. Spousal support aims to provide both spouses with a similar standard of living post-separation.

Spousal support is not intended to be absolute and forever. Self-sufficiency is another goal of spousal support. While a spouse may have been economically dependent upon the other during their relationship, the law does not want a spouse to remain so going forwards. The amount of support and how payment is structured are supposed to promote self-sufficiency.

Entitlements to Spousal Support

A prominent concern by spouses upon a breakdown in their relationship is whether a spouse is actually entitled to spousal support.

If you fall into these categories, you have met the first requirement for spousal support:

  1. Legally married
  2. Unmarried common-law relationship living together for at least three years
  3. Unmarried common-law relationship for any length of time, if they are in “a relationship of some permanence”, and the couple has had a child together.

In respect of (3.), there has been many cases interpreting what “a relationship of some permanence means” but generally speaking, the courts will review a number of factors such as:

  • Whether the parties lived together
  • Their levels of intimacy
  • Whether they interacted socially with each other and with third parties as a couple
  • Any intermingling of finances for each other and for their children
  • How the couple is perceived by the public
  • The parties’ intentions or expectations towards a long, indeterminate relationship

These factors are not seen as exhaustive and the court treats each case differently depending on the particular facts of the matter.

Forms of Spousal Support

Spousal support entitlement can be generally categorised under two different types of spousal support. The first is compensatory support, and the other is non-compensatory support.

Compensatory support, as the name suggests is to compensate a spouse for the sacrifices they have made over the course of their relationship – e.g. sacrifice of career prospects or where they have otherwise become economically disadvantaged because of child-rearing obligations. Compensatory spousal support looks to recognize these contributions to the marriage and compensate the disadvantaged spouse. 

Non-compensatory support is to relieve the economic burden and hardship a spouse may encounter as the relationship comes to an end. One spouse may be better equipped to handle the financial impact of the relationship breakdown. Non-compensatory support’s goal is to recognize that one party should not be in a significantly worse situation as the relationship ends. The intent of non-compensatory spousal support is to allow both spouses to enjoy a similar standard of living even after their relationship breaks down. 

If you are encountering any issues with your current spousal support order or if you are looking to obtain support or vary current support obligations, feel free to contact us for a free consultation. You can call us at 905-366-0202 or alternatively you can reach us through our website here.

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