ASKED QUESTIONS ABOUT
The answers set out below are intended only to provide general information. Every person's situation is unique and most often there are more matters to consider than what is set out in the individual questions. As well, if you live outside of Ontario your provincial or territorial legislation will be different from that inside Ontario. In every case, whether you live in or out of Ontario, you should consult an experienced family law lawyer fully informed about your circumstances and not act solely on the information set out here.
If you have a particular question not dealt with below you can send us an e-mail enquiry and we'll be sure to get back to you shortly.
Who is a "spouse"?
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Under section 2 of the Divorce Act a spouse "means either of a man or woman who are married to each other". That's pretty simple and straight forward. Only someone who is married and part of a divorce proceeding is elligible to obtain an order for support, or any other relief under the Divorce Act. As well, the two spouses must be of opposite sexes.
In Ontario, however, spousal support may be ordered for people who are not married. Under the Family Law Act a "spouse" means either a man or woman who are married to each other or have entered into a marriage that is void or voidable if entered into in good faith by the party making a claim. This includes polygamous marriages if celebrated in a place where such marriages are recognized as valid.
More importantly, however, the Family Law Act also recognizes two other relationships as giving a person rights to spousal support. Under section 29 (which deals with support) a spouse means any of the people just referred to and also "includes either of a man and woman who are not married to each other and have cohabited,
(a) continuously for a period of not less that three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child."
This covers common law marriages, if it lasted more than three years and relationships where there is a child even if the parties haven't lived together for three years.
However, there is a very recent Ontario court decision, M v. H, in which a judge held that the Charter of Rights prevents the province from discriminating against same sex couples in relationships of permanence. In effect, this decision holds that parties from same sex relationships can claim spousal support under the Family Law Act if they had cohabited "continuously for a period of not less than three years." The court held that the definition of "spouse" should delete the phrase "a man and a woman" and replace it with the phrase " two persons". This decision is currently under appeal. Arguement has been heard by the Ontario Court of Appeal and the decision has been reserved. We'll report on this once the Appeal decsion is handed down. For a more detailed discussion of this issue please read Same Sex Couples: What Rights Do They Have? in the FLC Cases and Comments section.
What does the legislation say about spousal support?
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The Divorce Act deals with spousal support in section 15 which states that:
"In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including:
(a) the length of time the spouses cohabited:
(b) the functions performed by the spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of the spouse or child."
Section 15 (6) of the Divorce Act clearly states that:
"the court shall not take into consideration any misconduct of a spouse in relation to the marriage" when considering whether or not to order support."
Section 15 (7) the Divorce Act sets out four fundamental objectives of any order for spousal support and states that any such order"
"shouldThe Family Law Act also deals with spousal support. Section 30 provides that:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8) [ which deals with child support ];
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time."
"every spouse has an obligation to provide support for himself or herself and for the other spouse, in accorance with need, to the extent that he or she is capable of doing so."
In section 33 (8) the Family Law Act sets out the purposes of any spousal support order and provides that:
"an order for the support of a spouse should,
(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home)."
Section 33 (9) of the Family Law Act states that:
"In determining the amount and duration, if any, of support in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant's [recipient's] and respondent's [payer's] current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant's capacity to contribute to his or her own support;
(d) the respondent's capacity to provide support;
(e) the dependant's and respondent's age and physical and mental health;
(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) a contribution by the dependant to the realization of the respondent's career potential;
(k) if the dependant is a child,
(i) the child's aptitude for and reasonable prospects of obtaining an education, and
(ii) the child's need for a stable environment."
I've heard of "interim support". What is it?
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Wherever the court can order support it can also order interim support. "Interim support" means an order for support that only lasts until the court makes a final order. It is designed to tide one over until the final hearing and doesn't provide for all of the things which a final order for support would take into consideration. This is the same for both the Divorce Act and the Family Law Act.
Often the interim support order tends to be the basis of a settlement or remains the only order made because the parties don't keep on with the litigation. As a result, this order is often very important and it is not wise to treat the motion for interim support casually.
Because an order for interim support is made at the beginning of the process the court may not yet have both sides of the story and the order made would likely have been different if the other side had been presented or fully prepared. Most family law lawyers treat the interim order stage as quite serious - and so should you.
How is spousal support usually calculated?
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In Ontario most spousal support claims are made under the Family Law Act. For practical purposes the courts make sure that the same principles apply whether the application is under that Act or the Divorce Act. Judges try to avoid ordering different amounts under the different Acts.
To begin with both parties will be obliged to file a Financial Statement which contains a Budget so that the court can see the total income and expenses of each of the parties. This helps in understanding the ability of the payer to pay a support order and the need of the recipient for one. It also helps to see how much money there is available to make support payments and just what the expenses are which the recipient claims should be supported.
The court will look at the standard of living existing at the time of the separation and at what efforts the parties have made to provide for themselves and each other. Sometimes it will be best to fully support a recipient for a specific period of time to allow for a skills upgrading course, or for the completion of a post secondary degree or job training course. Sometimes the court might feel that the payer or recipient could be using their skills and experience to obtain a better paying job than is now held, in which case the court will "impute" an income to that party even if it isn't actually being earned.
As well, the courts will look at the living arrangements of each of the parties. Perhaps one party is living with someone who is not contributing a fair share to the joint living expenses. That would mean that part of that person's expenses are really being used to pay for someone else. In those cases the court may take the third person's income or earning ability into consideration.
The courts are regularly caught in situations where there is simply not enough money available to allow both of the spouses to live in the same style and comfort as before the separation. As a result, an order which the court feels is fair is often seen by the payer as too high and the recipient as too low.
Are spousal support payments part of or separate from child support payments?
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Spousal support payments are separate from child support payments. They are ordered separately, may last for different periods of time and may have different terms applying to them. Obviously, there are cases where the size of the child support payment may affect the need for, or amount of, spousal support. The courts usually keep an eye on both requirements when making support awards in these cases.
As of May 1st, 1997 child support payments will no longer be tax deductable/includable and parties may want to negotiate much more carefully than before about how much is for child support and how much for spousal support. One can anticipate a number of fresh twists in working out spousal support payments to take into consideration the effect of the Child Support Guidelines.
Are spousal support payments taxable?
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Yes. Every person who recieves spousal support after separation, whether married or not, must include that income in his or her income if it is paid on a periodic basis pursuant to the terms of a court order or written agreement. These payments are deductable from the income of the payer. Depending on the terms of the agreement between the parties, payments made by one taxpayer for the benefit of the other or a child but paid to a third party (private school, summer camp, baby sitter, club membership, etc.) may be treated the same as a support payment and taxed as if paid to the recipient. To make sure that these payments are treated for tax purposes the way you intend, there is specific wording required for the court order or agreement between the parties.
You may have heard something about support payments being made non-taxable. This refers only to child support payments. There are no plans to change the taxability of spousal support payments.
How do I enforce a spousal support payment?
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In Ontario, all orders for support, whether for children or for spouses, are registered with the Family Support Plan. Payments must be made to the Plan which then sends the payment to the recipient. If there is any default, it is the Plan which tries to enforce it, although there are some circumstances where private enforcement is available. Every province and territory has its own enforcement provisions. In Ontario recently there has been a huge backlog such that payments which have been made by people ordered to make them have been recieved but not processed or fowarded to the recipient for weeks or longer. The provincial government claims to be sensitive to this problem and has declared its intention to clean it up.
Will a bankruptcy affect spousal support payments?
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No. Support payments are not affected by a bankruptcy. They remain in full force and effect. The bankruptcy will wipe out other debts, but not the support obligation.
From a practical point of view the bankruptcy of the person paying spousal support will often be helpful because it will ease up the pressure on that person's income and remove the obligation to finance his or her other debts. From time to time the person paying support threatens to go bankrupt unless the recipient agrees to be "more cooperative" and accept lower support. But in reality, if the bankruptcy occurs there will usually be more money available to pay higher support.
Click here to submit any questions you may have about spousal support. Thanks, Joel miller.