Following a separation or divorce, people often wonder how they will be able to support themselves and their children. Will the other party have a role in support, or fall off the radar completely? How much support will they be entitled to following the breakdown of their relationship? Will the amount be different if there are kids involved?
In this week’s blog, we explore commonly asked questions about spousal support.
What is Spousal Support?
What is often known as “alimony” in the United States, is known as “spousal support” here. Spousal support refers to the financial obligations that former spouses have towards one another.
Ontario’s Family Law Act (FLA) states that every spouse has an obligation to support themselves, and the other spouse, so long as they are able to do so. The purpose of spousal support is 4-fold:
- To recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for that spouse;
- The sharing of the economic burden of child support fairly;
- To make a fair arrangement to help the spouse become able to contribute to their own support; and
- To relieve financial hardship, if it has not been relieved through other parts of the Act
Who gets spousal support?
Under the FLA, both married and common-law partners fall under the definition of “spouse”.
The FLA recognizes that spouses can be:
- two people who are married to each other,
- have entered into a marriage that is voidable or void; or
- two people who are not married but have cohabited for either a period of the 3 years or more, or have a relationship of some permanence (such has if they are parents of a child) (i.e. common law)
A voidable marriage is a marriage that is valid (the couple followed the correct proceedings) but can be cancelled by one of the parties. Essentially, your typical marriage. A void marriage is where the marriage was unlawful from the start, for example:
- if a brother or sister marry, or
- if the form of marriage is forbidden by law (same-sex marriage in certain countries), or
- if there is a pre-existing marriage that has not been properly dealt with.
How long does one get support for?
The length of time one can get support varies from relationship to relationship. While the amount of spousal support depends on a wide range of factors, the length of support depends on how long a marriage and/or cohabitation lasted.
The Spousal Support Advisory Guidelines (SSAG) under the federal Divorce Act, addresses how much the support will be and how long it will go on for. It is not used to determine someone’s eligibility for support, only the amount and length. These are solely guidelines, and are not law. They are meant to be a tool to help lawyers, judges, mediators, and spouses determine the amount of support in typical cases.
The SSAG provides formulas to be used to determine how long and how much support a spouse can get.
How is it determined?
There are two basic formulas in the SSAG: the “without child support” formula and the “with child support” formula.
As the names indicate, the difference between the formulas is the presence or absence of a dependent child or child of the marriage. A child of the marriage is either:
- a child under the age of 18 and who is still under the parents’ care; or
- a person who is over the age of majority and under the parents’ care but are unable to withdraw from their parents care due to illness, disability, or some other cause.
Both formulas, once you input the information about spousal income, will produce ranges of amount and length of support. This provides spouses the opportunity to come to a number within that range through negotiation, or through the courts.
The without child support formula
The amount and duration of support under this formula increases with the length of marriage. The formula also provides for indefinite support, which will occur in two circumstances:
- when the marriage has been 20 years or longer in length;
- when the marriage has lasted five years or longer, if the years of marriage plus the age of the recipient at the time of separate equals or goes beyond 65.
The last circumstance is called “the rule of 65”and recognizes that the length of the marriage is not the only factor that determines the length of spousal support.
The with child support formula
When there are dependent children in the relationship, the rationale for spousal support is for the former spouses to compensate each other.
There have been several Supreme Court of Canada cases that have spoken to a need to compensate spouses for “foregone careers and missed opportunities during the marriage upon the breakdown of their union” (for instance, Bracklow v. Bracklow).
What this means is that there is an assumption that the primary responsibility of child care will fall onto one spouse during the marriage.
This formula is a bit complicated, and again, is dependent on the specific circumstances of the spouses in question. When using the formula, the amount of support will be found in the Federal Child Support Guidelines. There are tables in the Guidelines for almost every income. Based on the income, the amount of support is found in the table, per child.
As with everything in law, there are exceptions to spousal support.
The formulas discussed above, while useful, are meant to generate outcomes that are acceptable in most cases. There are cases where the formulas will not generate results that fall in line with the objectives of support.
The list of exceptions is not exhaustive (if it is not present in the list, that does not mean it could be considered an exception), but here are a few examples:
- Debt payments
- Illness or disability of the recipient spouse
- Special needs of a child
- Prior support obligations
Spousal support is not a one-size fits all concept. It is something that is very much based on the individual circumstances of the spouses. The SSAG are just that: guidelines. Determining spousal support in each individual case can become complicated quite quickly, particularly when children are involved.
At Borden Family Law, we have been advising clients on spousal support and related family law matters for 17 years. We focus solely on family law and rely on this deep experience to provide exceptional guidance to clients seeking assistance following the breakdown of their relationship. We serve clients in Oshawa, Ajax, Pickering, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905-576-6090 or contact us below.