When a marriage ends, a spouse may be entitled to spousal support. This is mainly because, in Ontario, the law views a spousal relationship similar to a financial partnership.
What is spousal support?
Spousal support is the amount of money that one partner pays to another partner after a separation or divorce. The partner seeking spousal support must prove that they have a legal right to it. Generally, when a partner proves entitlement to spousal support, it is the partner with the higher income paying support to the partner with the lower income. The partner paying support is called the “payor” while the other partner is called the support recipient.
How is spousal support determined?
Spousal support can be determined by the Spousal Support Advisory Guidelines. Unlike child support, these guidelines are not law. However, they help lawyers and judges calculate the amount and duration that spousal support is to be paid.
There are a number of factors that a judge considers in making a spousal support determination. In terms of whether a partner is entitled to spousal support, a judge will look at whether the divorce creates a worse financial situation for them. The role that each partner played throughout the relationship is also important. For example, did the partner seeking support not continue their career in order to take care of the home and children? The amount of spousal support and the duration is based on factors like the length of the relationship; the age of the partners at the time of the separation; each of the partner’s income; and if you have children together.
Partners only need to go to court if they cannot agree on a spousal support arrangement. Spousal support can be negotiated through a Separation Agreement with lawyers and/or a mediator.
Spousal support, paid in periodic payments, is tax deductible for the payor and is taxable as income for the support recipient. However, if agreed upon, a payor can give a lump-sum spousal support. This is a one-time spousal support payment. Lump-sum payments are not taxed.
How do you vary spousal support?
There are many reasons someone may want to change their spousal support obligations. For instances: an unforeseeable change in either partner’s finances; remarriage; or retirement. The process of changing a spousal support order depends on whether each partner agree on the changes.
If the parties agree on varying spousal support, the process is fairly simple. Unless a judge needs clarification, a judge will review required documents and sign the order. However, if the changes are contested, the party seeking to vary spousal support must prove there is a “material change” in circumstances. A material change in circumstances is defined as “substantial, continuing, and if known at the time [of the order or agreement], would likely have resulted in a different Order.”
If the change in the circumstances is insignificant or temporary, this likely will not meet the threshold to alter the agreement or court order. Examples include: changes in income; the support recipient is re-marrying and payments were only being given because they were in need; or arrangements involving children have changed.
If you are looking for more information or have additional questions, please do not hesitate to contact us. We will be happy to discuss your matter over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.