When you were in a long-term relationship, you likely saw that bond as based on love and commitment. While that may have been true, the law in Ontario sees a marriage as a financial partnership. That’s the basis for the guidelines that surround spousal support when a relationship ends.
What is Spousal Support?
For many reasons, the end of a relationship means one partner is less well-off than the other. Often, there is one person who will exit the marriage or partnership with a greater capacity to take care of themselves as a single person. An example is when one partner has stayed home to take care of children while the other has continued to work, or one partner has financed the other’s education while they took time out of the workforce.
Spousal support is intended to prevent someone from experiencing financial hardship after divorce or separation. However, it does not presume an indefinite relationship of dependence on the former partner. The idea is that one partner may receive a lump-sum or series of payments in order to help achieve self-sufficiency.
Unlike child support, spousal support is not automatic. The amount and frequency of payments does not follow a set formula, only general guidelines. However, because consistency is essential to the Ontario legal system, spousal support lawyers are expected to propose solutions that are in line with comparable divorce cases in the province.
In Ontario, lawyers often speak of three different kinds of spousal support. These distinctions are the result of the different reasons money is considered “owed” from one spouse to another.
Frequently asked Questions
Who is eligible for spousal support?
Married and unmarried (common-law) spouses are eligible to receive spousal support. Persons who were never married must have lived together as a couple: for a period of at least 3 years, or cohabitated in a relationship of “some permanence” and are natural or adoptive parents of a child.
How is spousal support determined? And what factors impact the amount and duration?
Spousal support is not automatic. Judges take into consideration various factors when deciding if a person is entitled to spousal support. For example, as noted by the Canadian Department of Justice:
* the financial means and needs of both spouses;
* the length of the marriage;
* the roles of each spouse during their marriage;
* the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
* the care of the children;
* the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and
* any orders, agreements or arrangements already made about spousal support.
Spousal support in Ontario can range from six months to one year for each year of marriage. Spousal support becomes indefinite if the marriage is 20 years or longer in duration. Spousal support also becomes indefinite if the marriage lasted for five or more years and the years of marriage and age of the support recipient at separation total 65 or more – this is termed as the rule of 65. This illustrates the reduced earning capability of separating parties as they near retirement age.
How is spousal support enforced?
The Family Responsibility Office (FRO) is a provincial government office with the power to enforce spousal support. Support orders are automatically filed with the FRO by the court. When a former spouse or partner is not making spousal support the FRO impose various methods to collect unpaid support from the payor. For instance, they may take money from a payor’s bank account, or garnish a portion of a joint bank account that the payor has with another person. Moreover, FRO may also send caution to the payor by suspending their driver’s licence, reporting the payor to credit bureaus and cancelling their passports.
Is spousal support taxable?
Generally, spousal support is viewed as taxable income for the recipient and as a tax deduction for the payor. However, certain criteria must be met for spousal support payments to be deemed as taxable and deductible. Spousal support must be paid on a regular basis, written in a court order or separation agreement, and paid to the former spouse. If spousal support is paid in the form of a lump sum (all at once) is not taxable for the recipient or deductible for the payor.
Our family law firm often gets asked if it is required to have a lawyer for child support / spousal support. We always suggest at minimum booking a consultation with a family lawyer before signing any documents.
Even though it is possible to sign or agree on spousal support without a lawyer, it is important that both parties understand their rights and obligations.
There are three different ways to book a consultation with our Toronto family lawyers:
Common Law Spousal Support
In Ontario, spousal support is an accepted part of divorce negotiations for married couples. However, common law couples can also claim common law spousal support as long as they meet certain criteria. Specifically, an Ontario couple must have been living together for three years, or alternatively, have a child together and been living together in a serious relationship.
Grounds for Spousal Support
Because spousal support is not guaranteed to either spouse, your family lawyer will have to make a case that you are entitled to money from your former partner. This is the case regardless of whether or not you were legally married. Specifically, you must say how much you need to meet your needs.
Your needs can be defined as what you need to prevent financial hardship or to become self-sufficient. The decision-maker, be it a judge or a family law mediator, will also take into account how much your former spouse is able to pay. It is common as well for the judge to look at such factors as the length of the marriage and the existence of any family law contracts that speak to spousal support.
Spousal Support after Remarriage
Once a spousal support arrangement is in place, it may not go on indefinitely. There are certain factors that can lead to the reassessment or ceasing of spousal support. One big change is if one, or both, former partners remarry. However, regardless of the situation, there is no hard and fast rule for what happens in this circumstance, only probabilities.
If the paying spouse gets remarried, there is usually no grounds to reduce or reassess the spousal support amount. Payments would likely continue according to the plan already agreed to in the common law separation or divorce settlement. Additionally, even if the payor’s ability to make payments increases after the new marriage, it will usually not lead to a reassessment of the spousal support agreement.
However, if the receiving spouse gets remarried, this can affect the spousal support arrangement. Although the individual circumstances will weigh heavily on the final result, it would not be unexpected for spousal support to be reduced or terminated upon the recipient’s remarriage. However, a lot depends on the difference in the standard of living before and after entry into the new relationship.
It is important to note that the guidelines surrounding remarriage also apply to repartnering, in other words, if either spouse enters into another long-term, or marriage-like, relationship. Increasingly, the law has blurred the distinctions between legal marriages and stable common law relationships.
Taking Stock of Your Options | Spousal Support Lawyers
Ending a relationship is never easy, but an Ontario spousal support lawyer can help you assess your current and future financial needs. To be sure, the rules are complicated and you may have only a limited understanding of your rights and obligations. Together, you and your Clearway lawyer can come up with a plan of action to move on to the next phase of your life.