Unlike child support, spousal support has no table where you can look up an answer. Ask two people what they believe it means and you will likely hear two confident and wrong answers: “You get it automatically after a long marriage,” or “If you can work, you do not get anything.” Neither is the law in Ontario.
Courts approach spousal support by asking three questions in order. First, is the person entitled to it at all? Second, if so, how much? Third, for how long? Mixing them up leads to much of the confusion and argument in these cases. The formulas people hear about only help with the last two questions, not the first.
This is general information about Ontario and federal law, not legal advice. A spousal support result can depend heavily on the specific facts of a relationship.
Which law applies to you
Married people who are divorcing can claim support under section 15.2 of the Divorce Act. Married people who are separated but not asking for a divorce, and unmarried partners who qualify, generally claim under Part III of Ontario’s Family Law Act.
Ontario extends support rights to people who are not married. Under section 29, a spouse for support purposes includes two people who have cohabited continuously for at least three years, or who have cohabited in a relationship of some permanence and are the parents of a child. This is an important contrast with property rights, since unmarried partners do not get equalization under Ontario’s Family Law Act but may have a claim for support.
Many people are surprised to find that fault is not part of this analysis. Under the Divorce Act, a court does not consider misconduct when making a spousal support order. An affair is not a reason in itself to grant, deny or increase support. Keep your energy for issues that may actually affect the result.
Question one: entitlement
Being lower-earning does not by itself create a right to support. The law recognizes three main bases for entitlement, and a claim may rely on more than one.
Compensatory support. Here, the person gave up something, or helped the other person gain something, because of the relationship. A hypothetical: a spouse who leaves a career to raise children and run the household while the other builds up a business or gets a professional licence may have fallen behind in their earning power. Support is intended to recognize that economic loss or advantage.
Needs-based, or non-compensatory, support. Here, a person may have real financial need when the relationship ends, even if no career was sacrificed. Illness, disability, age or a sudden drop in living standards after a long marriage can all be relevant. The law takes into account the economic interdependence that develops over time.
Contractual support. A separation agreement, marriage contract or cohabitation agreement may address support, by providing it or by waiving it. Courts give weight to such agreements, though they are not always the last word.
The statutes express the goals of support in slightly different ways. Section 15.2(6) of the Divorce Act says an order should recognize any economic advantages or disadvantages from the marriage or its breakdown, apportion the financial consequences of child care, relieve economic hardship, and as far as practicable promote each spouse’s self-sufficiency within a reasonable time. Section 33(8) of the Family Law Act refers to recognizing contributions to the relationship and its economic consequences, sharing the burden of child support equitably, helping a spouse become able to contribute to their own support, and relieving financial hardship.
Self-sufficiency is one factor among several. It does not mean that every person must immediately support themselves, and it does not mean that support continues forever.
Question two: the amount
Once entitlement has been established, courts and lawyers often turn to the Spousal Support Advisory Guidelines, known as the SSAG. These are not legislation. They were developed under a project sponsored by the federal Department of Justice, and judges are not bound to apply them, but they are widely used in practice to give a range for both amount and duration. Ontario’s own guidance on spousal support confirms that they are used to estimate both.
The SSAG uses two main formulas, depending on whether child support is also being paid.
The without-child-support formula applies where no child support is payable, for example where the children have grown up or there were none. It is based on the difference between the spouses’ gross incomes and how long they lived together. The monthly amount ranges from 1.5 to 2 per cent of the gross income difference for each year of the relationship, capped at a level that prevents the recipient from ending up with more than half of the couple’s combined net income.
The with-child-support formula applies where child support is also being paid. It works differently, because it uses each parent’s net disposable income after child support and related amounts have been accounted for. Because of this, it almost always requires software to calculate properly.
A hypothetical helps illustrate the first formula. Assume a 10-year marriage with no dependent children and a gross income difference of $40,000. The low end of the range would be 15 per cent of that difference, or $6,000 a year, and the high end would be 20 per cent, or $8,000 a year. That works out to about $500 to $667 a month. These figures are for illustration only, and the actual amount could fall outside this range or be affected by other factors.
Where a result lands within the range, or whether a court goes outside it, depends on things such as the strength of the compensatory claim, the recipient’s needs, the payor’s ability to pay and the debts involved. Exceptions to the formulas exist as well, for example in cases of illness or disability or when a large debt payment is being made. Getting the input right matters a great deal, and income can be disputed in the same way as in child support cases.
Question three: duration
Under the without-child-support formula, the general rule is that support lasts from half a year to one year for every year the couple lived together. A 10-year relationship, for instance, would suggest a range of five to ten years.
Two situations can lead to what is called indefinite duration:
- Relationships of 20 years or more.
- The rule of 65. If the years of the relationship plus the recipient’s age at separation add up to 65 or more, and the relationship lasted at least five years, duration may be indefinite.
“Indefinite” does not mean permanent. As the SSAG Revised User’s Guide makes clear, it simply means no end date is set at the outset. The order may still be reviewed or changed, and the amount can decline over time. Duration under the with-child-support formula also follows a separate approach that often relates to the age of the youngest child and when that child finishes school.
A fixed term does not mean everything stops automatically in every case either. Some orders set a review date. Agreements may say support is non-variable, or may allow changes if there is a material change. How your document is worded can be just as significant as the number itself.
Evidence that tends to matter
Because spousal support is so fact-specific, the story has to be supported by evidence. In practice, that often means:
- income records for both people, usually going back at least three years
- when you began living together, when you separated, and how that can be shown
- career history before and during the relationship, including jobs turned down and moves made for the other person’s work
- who did the child care, and how it affected each person’s working life
- education, training and health issues that affect future earning ability
- the standard of living during the relationship, and each person’s present budget
- a realistic plan for moving toward self-sufficiency, if that is appropriate
The last item often makes a difference. A person who is seeking support is generally expected to make reasonable efforts to increase their earning capacity where they can. Saying “I am taking this certificate program at Sheridan College and expect to finish in 18 months” is far more persuasive than a general statement that one cannot find work. Similarly, a paying spouse who claims a sudden loss of income will need to show why.
Tax, security and enforcement
Periodic spousal support paid under a court order or written agreement is generally deductible to the payor and taxable to the recipient, while child support is treated differently. This affects the real value of any figure, and it is one reason the formulas take tax into account. Lump-sum payments may be handled differently, so get tax advice on a large settlement.
Support obligations can also be secured. A court may, under the Family Law Act, order a party to maintain life insurance for the recipient. An agreement can provide the same protection. Without this, a payor’s death could leave the recipient exposed.
The Family Responsibility Office enforces spousal support orders in the same way as child support. A court order is sent there automatically. A separation agreement must first be filed with a court before it can be registered, and the office can then take enforcement steps if payments fall behind.
Changing or ending support
Support orders can be varied where there has been a material change in circumstances, such as a serious illness, a significant job loss or retirement. In the case of a motion to change, Ontario’s guidance requires service within 30 days of the document being issued, and the other side then generally has 30 days to respond.
Do not simply stop paying, even if you think your circumstances justify it, since arrears continue to accumulate under an order until it has been changed. Similarly, if you are receiving support and your situation improves, check your order or agreement. Many require disclosure of changes, and hiding one can cause serious problems later.
Next steps if this applies to you
Start by figuring out where you fit: married or common-law, and how long you have been together. Gather your income records and write a short timeline of career decisions during the relationship. If you can do this before speaking with a lawyer, your first conversation will be far more productive, and you will be better able to judge any proposal the other side makes.
An estimate from an online calculator can be a helpful starting point, but it cannot answer the entitlement question or check whether the inputs are correct. For more about how these claims are handled, see our page on child and spousal support, or contact the firm if you want a lawyer’s view of your own numbers.