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What is spousal support?

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What is spousal support?

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Reviewed: 
September, 2015
Answer

When you and your partner separate or divorce, you may get spousal support from your partner. Or, you may have to pay spousal support to your partner.

Spousal support applies to partners who are married and to partners in a common-law relationship. Partners can be same-sex.

Spousal support is paid by the partner who earns more to the partner who earns less. The person who gets support is called the support recipient. The person who pays support is called the support payor.

The purpose of spousal support is to:

  • Recognize each partner's contributions to the relationship.
  • Make things more even for a partner who lost out financially during the relationship. For example, one partner may not have continued with their career so they could care for the children and is not able to support themselves right away.
  • Share the costs of caring for the children.
  • Relieve financial hardship.
  • Help a partner become able to support themselves. For example, by going to school to upgrade their skills and get a job.

Spousal support is not automatic. You can only get it if you're entitled to it. And, even if you're entitled to it, the law expects you to try to support yourself as soon as possible after separation.

You and your partner can try to reach an agreement about spousal support. If you can't agree, you can get help from a family law professional or go to court and ask a judge to decide.

There are rules about spousal support and social assistance. Social assistance includes Ontario Works and the Ontario Disibility Support Program.

You can talk to a lawyer who can help you understand what the law says about spousal support. 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.

1. Check if you meet the definition of "spouse"

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".

Reviewed: 
September, 2016
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2. Figure out who is entitled to spousal support

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

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

If you're entitled to spousal support, the law still expects you to try to support yourself as soon as possible after separation. This is sometimes called the "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.

Reviewed: 
September, 2016
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3. Calculate the amount of spousal support

The amount of spousal support and how long it is paid 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.

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.

Reviewed: 
September, 2016
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4. Check the guidelines for exceptions

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 the support payor to pay less:

  • The support payor makes less than $20,000 and paying spousal support would push them into poverty.
  • The support payor is responsible for other family debt. For example, they are paying the mortgage until the property can be divided.
  • The support payor is responsible for paying other large family debts until it can be divided.
  • The support payor is paying child support for children from another relationship. Or, they are paying spousal support to another former partner.
  • The support payor doesn't have custody of their young child and was in a short relationship, but plays a significant role in raising the child. The support payor would not be able to meet the demands of parenting if they also had to pay spousal support.
  • The support payor cannot deduct spousal support from their income for tax purposes because they receive disability payments, workers' compensation, or income from an overseas job.

Examples where the court may order the support payor to pay more:

  • The support recipient has an illness or disability.
  • The support recipient is caring for their child, who has special needs.
  • The marriage was short and there were no children, but the support recipient did not continue with their career to help the support payor build theirs.
  • Child support takes priority over spousal support. This means if the support payor doesn't make enough money to pay both, child support must be paid first. So, if the support payor is paying less spousal support than the guidelines call for, they may have to pay it for longer.
Reviewed: 
September, 2016
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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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