The Basics

Spousal Support

When is Spousal Support Ordered?

At the end of a relationship, the spouse with less income may make a support claim from the other, which is in addition to a property settlement. This additional support payment is referred to as “spousal support” in Canada.[1] The Divorce Act[2], sections 15(2-4) sets out the factors and objectives for an order for spousal support:

Factors – In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:

  1. the length of time the spouses cohabited;
  2. the functions performed by each spouse during cohabitation; and
  3. any order, agreement or arrangement relating to support of either spouse.

Spousal Misconduct – In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order – An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

  1. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  2. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  3. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  4. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Note that under 15(5), spousal misconduct during the marriage isn’t relevant for the determination of spousal support. We are often asked if one party has an extra-marital affair whether this results in a claim for more money in support. The simple answer is that it does not.[3]

Lump Sum vs. Monthly Spousal Support

Most often, spousal support orders made by the court are monthly payments. Spousal support may be ordered on a temporary basis (before trial) and/or on a final basis. It is possible for a court to order a lump sum payment, although these cases are not common and usually involve shorter term relationships. Spousal support which is paid monthly is taxable to the recipient and tax deductible to the payor. Lump sum payments should take into account a tax deduction and present value calculation.

Even though courts do not routinely make lump sum orders for spousal support, parties are free to negotiate lump sum agreements. It’s common for parties to want finality and they are able to choose this option if they enter into a final separation agreement. In these cases where parties settle spousal support on a final basis either through a lump sum payment or fixed amount, there is usually a final release of spousal support so that further claims may not be brought in the future.[4]

How is Spousal Support Determined?

The Spousal Support Advisory Guidelines (“SSAG”) are the starting place for determining spousal support.[5] As the name suggests, the SSAG are not law, but they are used by lawyers and judges as a starting point to determine spousal support.

SSAG ranges

The SSAG produce a range of spousal support (low, mid and high) as well as a range for duration based on the circumstances of the parties. Factors such as incomes, length of relationship,[6] number of children and age of recipient at the date of separation are all used to determine the appropriate range of spousal support in a particular case. Once the SSAG range is determined, the parties may agree or a court must determine whether it’s appropriate to order an amount of spousal support that falls within the range produced by the SSAG. If a court orders spousal support which falls outside the range, there must be an explanation for this.[7] The determination of spousal support is not as certain as child support in that there is more discretion used by a court to determine spousal support.

The SSAG ranges are very useful for parties who are seeking to resolve the issue of spousal support outside of court because they provide an objective guide for determining appropriate support.

Calculation Tools for Spousal Support

Lawyers use software to calculate spousal support based on the SSAG.[8] It can be complicated particularly because the inputs used can make a dramatic difference on the outcome of the support range that is produced. There are, for example, different formulas within the SSAG, such as the “with child support formula” and “without child support formula”. If a child is 18 years or older and lives away for school during part of the year, there is also an “adult child formula”. There are many variations for spousal support depending on variations in the child support payable. This is due to the fact that child support is to be prioritized and then remaining income may be considered for spousal support. Spousal support may be set at a lower amount while children are at home (and child support is payable) but then may be later increased when child support terminates because there is more income available.[9] There are also tax implications which can complicate the calculation.

Entitlement

It’s important to note that spousal support may not be appropriate in every case even if there is a difference in the parties’ incomes. The SSAG Revised User’s Guide explains the importance of considering entitlement:[10]

  1. An analysis of entitlement is the crucial first step before any application of the Guidelines. In practice this step is often ignored, the assumption being that any income disparity that produces a positive range for amount under the SSAG formulas means there must be entitlement.
  2. The Advisory Guidelines do not determine entitlement. They deal with the amount and duration of support after entitlement has been established. They do not provide an arithmetical basis for entitlement.

Entitlement should be considered in every case and usually involves a review of the circumstances of the relationship. For example, it is not just the length of a relationship which is important. It’s necessary to determine whether the claim for spousal support is “compensatory” or “non-compensatory.”

Compensatory vs Non-Compensatory Claims

In relationships where one spouse has suffered an economic disadvantage, as a result of foregoing career opportunities, the claim for spousal support is “compensatory.” Examples of this are in relationships where one child stays at home to care for the children or the home while the other parent works. In relationships where there has been no economic disadvantage to the recipient spouse but there is nevertheless an income disparity, spousal support is “non-compensatory” or “needs” based. Non-compensatory support is based on economic interdependency and loss of a similar standard of living.

Whether support is compensatory or non-compensatory is relevant for the determination of duration and the amount of support. For example, long term traditional relationships are typically compensatory and would result in longer support (which may be indefinite[11]) and may also fall within the upper end of the SSAG range.

About the Author

Julie Stanchieri is a family lawyer with more than two decades of experience representing clients in all areas of family law, in both court proceedings and out-of-court resolutions. She is the founding partner of Stanchieri Family Law, a boutique firm established in downtown Toronto in 2008. Julie holds a Master of Laws (LL.M.) in Family Law from Osgoode Hall Law School and a Bachelor of Laws (LL.B.) from the University of Toronto. In addition to her legal practice, she is an accredited mediator and arbitrator, and a frequent speaker and author on family law issues.

Footnotes
  1. Also referred to as “alimony” in other jurisdictions. ↩︎
  2. R.S.C. 1985, c. 3 (2nd Supp) https://laws-lois.justice.gc.ca/eng/acts/d-3.4/page-3.html#h-173185. Note that the Divorce Act only applies to married spouses but there are similar provisions in s. 33 of the Family Law Act, R.S.O. 1990, C. F.3. for unmarried spouses: https://www.ontario.ca/laws/statute/90f03#BK39 ↩︎
  3. Although spousal misconduct isn’t a factor in determining support or property entitlements, it’s often raised in family law proceedings when explaining the context of the relationship. ↩︎
  4. Spousal support releases cannot be ordered by the court and this is a common reason why these claims are often settled outside of court where parties wish to have finality. These releases are often referred to as “Miglin” releases… ↩︎
  5. The SSAG were created two professors, Carol Rogerson and Rollie Thompson… ↩︎
  6. The length of relationship should include both cohabitation and marriage. ↩︎
  7. Fisher v. Fisher, 2008 ONCA 11 (Canlii) at 102-103. ↩︎
  8. There are online calculators available for simple calculations: https://mysupportcalculator.ca/. ↩︎
  9. See the Revised User’s Guide for explanation… ↩︎
  10. https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/p3.html ↩︎
  11. Note that indefinite support is not permanent support… ↩︎
Blog

Our Articles

Introduction

The aim in every family law case is to find a solution which best meets a client’s needs. Family law disputes are complicated because family law touches so many other areas of law and because the dispute is based on human relationships, which are complex and evolving. The difficult but rewarding challenge for every family lawyer in helping a particular client, is that each situation is different. There could be similar strategies we employ, but each case demands a unique approach....

First Article

Read Article

Engaging a Family Lawyer

Some of the most common questions we are asked when we meet with new clients are, “When should I retain you?” and “How does all of this work?” A lot can be said about how and when a family lawyer can help, which will be covered in other posts. For now, here is a very high level description of some of the most common situations where family lawyers are retained....

The Basics

Read Article

Parenting Disputes

Family lawyers will ask in a first consultation whether a client has parenting concerns because parenting disputes often take priority. Parenting disputes are not always a 5-alarm fire type situation, but sometimes they are and action must be taken immediately. In some cases, we must schedule an urgent conference or motion to deal with pressing parenting issues immediately, but in many other cases, we negotiate a parenting plan or refer clients to mediation. We need to know as early as possible if the children’s issues need to be addressed so we can take steps to alleviate difficulties in the short and longer term....

The Basics

Read Article

Income Determination

Even if you’ve never been through a family law dispute before, you’ve probably heard of child support or spousal support (also known as “alimony”). To determine what someone will owe for support, we must first determine that spouse’s income. This is often easier said than done. For some payors, it could be a straightforward exercise. We simply refer to gross “Total income” on their tax return.1 If a payor is an employee with an arms’ length employer, and there is no opportunity to reduce or defer income, or write off unnecessary expenses, it can be very quick and easy to determine that person’s income by looking at their tax return....

The Basics

Read Article

Child Support

In Canada, the Federal Child Support Guidelines (“Guidelines”) lay out a framework for the determination of child support. The total child support owing, pursuant to ss. 3 and 4 of the Guidelines includes: child support in accordance with the applicable table; and an amount, if any, for any special and extraordinary expenses under s. 7 The Guidelines require specific income information from a payor so that child support may be determined pursuant to set tables.  The tables determine child support according to a person’s income and the number of children that they have. ...

The Basics

Read Article

Need Lawyer

Need Lawyer Descriont