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Do I have to pay spousal support?

Question
Do I have to pay spousal support?

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Reviewed: 
September, 2015
Answer

When you and your partner separate or divorce, you may have to pay spousal support to your partner if your income is higher. You're called the support payor and your partner is called the support recipient.

Spousal support is not automatic. Your partner must be entitled to it. For example, if:

  • Your partner is leaving the relationship in a worse financial position than you.
  • Your partner did not continue with their career because they took care of the home and children, which allowed you to build your career.
  • You and your partner signed a contract that says you will pay spousal support if your relationship ends.

If your partner is entitled to spousal support, the amount you pay and how long you pay it depend on things like:

  • how long you and your partner lived together
  • if you have children together and who has been caring for them
  • each partner's income
  • each partner's age
  • the roles each partner had during the marriage, for example if you were the main income earner

Courts use the Spousal Support Advisory Guidelines (SSAGs) to help them decide how much spousal support should be paid and for how long. These are only guidelines, not laws.

You need special software to calculate spousal support using the SSAGs. This free online calculator can give you a rough idea but it only does simple calculations, and it only takes employment income into account.

You can talk to a lawyer to help you understand what the law says about spousal support and if you're responsible for paying it. If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

Next steps

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You and your partner are spouses if you're married to each other or in a common-law relationship.

For the purpose of spousal support, a common-law relationship means you:

  • cohabited, or lived together, as a couple for at least 3 years, or
  • were in a relationship of "some permanence" for any length of time and had a child together.

Cohabiting means living together in a marriage-like relationship but without getting married. It is often called "cohabitation" or "living common-law".

A court looks at these factors to decide if you're in a common-law relationship:

  • Did you live together?
  • Did you have sex?
  • Did you do household chores for each other like cooking, cleaning, and laundry?
  • Did you act as a couple socially?
  • Did your friends, family, and community see you as a couple?
  • Did one partner support the other financially?
  • Did you combine your finances?
  • Did you act as parents to each other's children?

Even if you and your partner did not live together for 3 years, you may still be spouses if you had a child together and lived together in a relationship "of some permanence".

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There are 3 ways your partner can be entitled to spousal support. More than one of them may apply to your situation:

  1. Your partner had responsibilities during the relationship, such as taking care of your children or helping you build your career. Because of that your partner lost the chance to make their own career. This is called "compensatory spousal support".
  2. The breakdown of your relationship leaves your partner in need and you have enough income and assets to pay spousal support. This is called needs-based support or "non-compensatory spousal support".
  3. You and your partner have a cohabitation agreement, marriage contract, or other agreement that says if you separate, you will pay spousal support. This is called "contractual spousal support".

The court looks at factors like:

  • how long you and your partner lived together
  • if you have children together and who has been caring for them
  • each partner's income
  • each partner's overall financial situation

Even if your partner is entitled to spousal support, the law expects them to try to become self-supporting as soon as possible after separation. This is sometimes called a "duty to become self-sufficient".

Example:

When Sara and Abraham started living together, she was working as a nurse. She stayed home after their 3 children were born and hasn't worked outside the home for 15 years. This allowed Abraham to focus on his career as a teacher.

At separation, Sara has no income and assets in her own name. She needs to re-train to go back to work as a nurse. Sara is entitled to spousal support on a compensatory basis, because she gave up a career to stay home with the kids. She is also entitled to support on a needs basis. She has no way to support herself while she goes back to school, and Abraham has enough money to support her.

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If your partner is entitled to spousal support, the amount you pay and how long you pay depends on factors like:

  • how long you and your partner lived together
  • if you have children together and who has been caring for them
  • each partner's income
  • each partner's age
  • the roles each partner had during the marriage
  • each partner's mental and physical health
  • the ability of each partner to support themselves

Support amounts are usually higher, and paid longer, where:

  • there are big differences between the partners' incomes,
  • they lived together for a long time, and
  • they had children.

Amounts are smaller if there are smaller differences between the partners' incomes and their relationships were shorter.

Courts use the Spousal Support Advisory Guidelines (SSAGs) to help them decide how much spousal support should be paid and for how long. These are only guidelines, not laws. A judge can order more or less support than what the guidelines say.

The SSAG formula calculates a range of low, middle, and high support amounts, as well as the length of time spousal support might be paid. This can help you or a judge decide what amount of spousal support is appropriate and for how long, depending on the facts of your case.

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The Spousal Support Advisory Guidelines (SSAGs) list some exceptions. These are situations where the guidelines may not apply or where the court may order a different amount of support than what the guidelines say.

Examples where the court may order you to pay less:

  • You make less than $20,000 and paying spousal support would push you into poverty.
  • You are responsible for other family debt. For example, you have to keep paying the mortgage until the property can be divided.
  • You are responsible for paying other large family debts until it can be divided.
  • You are paying child support for children from another relationship. Or, you are paying spousal support to another former partner.
  • You have a young child from a short relationship with your partner. Although you do not have custody, you play a significant role in raising your child. Paying spousal support would mean that you are not able to meet the demands of parenting.
  • You cannot deduct spousal support from your income for tax purposes because you receive disability payments, workers' compensation, or income from an overseas job.

Examples where the court may order you to pay more:

  • Your partner has an illness or disability.
  • Your partner is caring for your child, who has special needs.
  • Your marriage was short and you had no children, but your partner did not continue with their career to help you build yours.
  • Child support takes priority over spousal support. This means if you don't make enough money to pay both, you must pay child support first. If you are paying less spousal support than the guidelines call for, you may have to pay it for longer.
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Usually spousal support is paid each month. In some cases, you can make one payment, called a "lump-sum" payment.

Support can be for a set period of time or it may not have an end date. This depends on the facts of your situation.

You can make spousal support payments by:

  • cash
  • cheque or money order
  • direct deposit
  • interac e-transfer

It's a good idea to keep a record of all the spousal support payments you make. For example, if you pay by cheque, keep a copy of the cancelled cheque each time you make a payment.

Paying taxes on the support you pay

If you have a separation agreement or court order that says you pay monthly spousal support, you can deduct the amount you pay on your income taxes. Your partner must pay income tax on the monthly spousal support they receive.

If you pay spousal support all at once in a lump-sum, you cannot claim it as a deduction. And, your partner is not taxed on the one-time support payment they receive.

You are not paying support on time

If you miss payments, your partner can get help from the Family Responsibility Office (FRO).

The FRO is a government agency that collects support directly from the person who has to pay support, keeps a record of the amounts paid, and then pays that amount to the person who has to get support.

If you have a court order, the court automatically sends the order to FRO for enforcement. If you have a separation agreement, it must be filed with the court and registered with the FRO for enforcement.

Learn more about this topic
CLEO (Community Legal Education Ontario/Éducation juridique communautaire Ontario)
Ontario Ministry of the Attorney General
Springtide Resources
CLEO (Community Legal Education Ontario/Éducation juridique communautaire Ontario)

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