Spousal Support FAQs

Q: Do I Have to Pay Spousal Support?

Spousal support is not an automatic right associated with a breakdown of the marriage. Your spouse may be entitled to support if he or she can demonstrate one or more of the following: financial need arising from the marriage or its breakdown, an entitlement to compensation for the economic consequences of the marriage, or a contract between the two of you that sets out a support obligation on your part.

Support is not restricted to married parties. The Family Law Act Part 3, which governs support obligations for unmarried spouses, or married spouses who are not pursuing a divorce, defines “spouse” as including cohabiting couples who have lived together for a period of at least three years, and cohabiting biological or adoptive parents.

Once entitlement has been established, the court will consider the appropriate amount and duration of support, generally in line with the Spousal Support Advisory Guidelines.

Q: Who Is Eligible for Spousal Support?

Support is not an automatic right associated with a breakdown of the marriage. In 1999, the Supreme Court listed the three grounds necessary to establish an entitlement to spousal support (Bracklow v. Bracklow).

In Ontario, you are only eligible for spousal support:

• To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
• To fulfill a contractual agreement, expressed or implied, that the parties were responsible for each other’s support; or
• On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.

In other words, a spouse seeking support must demonstrate either a compensatory basis for support, need, or a contractual obligation.

The latter two are fairly self-explanatory criteria. Regarding the compensatory basis of support, in 1992, the Supreme Court held in Moge v. Moge that spouses are entitled to be compensated for contributions to the marriage, and for losses sustained as a consequence of the marriage: for example, as a result of staying out of the work force in order to raise children, or putting one’s career goals on hold in order to accommodate a spouse’s career.

This decision reflects the provisions of the Divorce Act, which states (s. 15.2(4)) that the court in considering a support award shall take into consideration the condition, means, needs, and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse in the relationship; and any order, agreement or arrangement relating to support of either spouse.

The Divorce Act further states (in s. 15.2 (6)) that the 4 objectives of a spousal support order are to:

• Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• 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;
• Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
• In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Spousal support is not restricted to married parties. The Divorce Act governs support for formerly married spouses, but the Family Law Act also includes spousal support provisions. In those provisions, the term “spouse” includes cohabiting couples who have lived together for a period of at least three years or cohabiting biological or adoptive parents (s. 29).

Whether the spouses are married or not, the court will not consider spousal misconduct when making a support award. This means that the conduct of either party has no impact on their entitlement for support. Even if adultery is the reason for the breakdown of the relationship, parties are still eligible to apply for support.

The simplest way to initiate spousal support is by way of a separation agreement under the guidance of a family lawyer. Lawyers use specialized software to calculate spousal support obligations that contemplate both current and future need.

Q: How Is Spousal Support Calculated?

The Spousal Support Advisory Guidelines serve as a starting point for quantum and duration of support. Instead of generating a definitive number, the Spousal Support Advisory Guideline formulas provide ranges for both support amount and duration. A court can choose to follow the guidelines or depart from them in any particular case. The Guidelines will provide a range and duration for monthly support payments, but spouses are also free to negotiate (and the court has discretion to order) an equivalent lump sum payment instead.

The Guidelines are largely based on the length of cohabitation (married or common law). For married spouses, the formula contemplates time spent cohabiting before and during marriage. There are two basic formulas used to calculate spousal support: the With Child Support formula, and the Without Child Support formula, depending on whether the payor will be paying spousal support in combination with child support.

See our Spousal Support article for more information.

Q: How Can I Change My Spousal Support? If My Income Is Drastically Reduced, Can I Decrease My Support Payments?

If your support obligation is the result of a court order or an agreement filed with the court, you will have to bring a Motion to Change in order to vary your support. There are two ways in which this can be done:

• As a Consent Motion to Change, if you and your spouse both consent to the change, or
• As a Motion to Change without Consent, if your spouse does not agree to the change.

In order to persuade the court to vary (or change) an existing order or agreement, you must show that there has been a material change: a change in the condition, means, needs or other circumstances of either former spouse since the making of the support order.

If you have lost your job or have had your hours drastically reduced, this may constitute a material change, provided this event was unforeseen at the time of the original support order, and the loss of employment affects your ability to pay support.

See the article Changing Spousal Support for more information on the law in this area, and what constitutes a material change in circumstances. See the Spousal Support Forms section for information about how to bring a Motion to Change.

Q: Do I Have to Go to Court?

No. Spousal support arrangements can be made by way of a separation agreement. If parties are unable to come to an agreement by negotiation, there are other ways to resolve disputes surrounding support. Parties may negotiate with the assistance of qualified lawyers either by correspondence or in four way joint meetings, or parties may choose to collaborate or participate in mediation as alternatives to court. Alternative methods for resolving disputes are often faster and less expensive than the traditional litigation approach.

Q: Are Support Payments Taxable Income in Canada?

One common question that gets asked with respect to family law matters is whether spousal and child support payments are taxable income in Canada. The short answer is that it depends. The tax rules are different for spousal support and child support.

Is spousal support taxable income in Canada?

In Canada, spousal support does have tax implications. There are various options for parties with respect to spousal support including periodic payments, lump sum payments or options in between. The tax implications also depend on whether you are the party who is paying the spousal support or the party receiving the spousal support. In order for spousal support payments to be considered taxable and deductible they must be; paid on a regular and periodic basis; written in a court order or separation agreement; and paid to the former spouse and not a third party.

What if I am the party paying the spousal support?

If you are paying monthly spousal support to a former partner you will get an income tax deduction for the total spousal support that you pay each year providing it is pursuant to a written agreement or court order. However, you will not be eligible for this tax deduction if you make one lump-sum payment.

What if I am the party receiving the spousal support?

If you are receiving monthly spousal support, you are required to pay income tax on the total amount of support that you receive each year providing there is a written agreement or court order. You may also claim a tax deduction for the legal fees that you spent in order to obtain this monthly spousal support.

However, if you receive all of your spousal support in one lump-sump payment, you do not pay income tax on it. You also will not be able to claim a tax deduction on any legal fees that you spent to get this lump-sump payment.

Determining the method of spousal support payments can have significant tax implications for all parties involved, it is best to consult a lawyer or accountant before deciding on a support payment method.

Q: How Long Do I Have to Pay Spousal Support?

For post separation families without children, support duration ranges from one-half to one year of support for each year of marriage (or cohabitation), with duration becoming indefinite after twenty years of marriage. Since one of the factors in determining a spousal support entitlement is age, the Spousal Support Advisory Guidelines suggest indefinite support if the marriage has lasted five years or longer and the years married added to the support recipient’s age at separation total 65 or more. This reflects the diminished earning capacity of separating parties as they reach retirement age.

For post separation families with children, factors impacting support duration include length of marriage, the time remaining until the youngest child of the marriage completes high school, and the age of the recipient (particularly those nearing retirement).

Q: My Former Spouse/Partner Is Refusing to Make Spousal Support Payments. How Can I Get My Support Order Enforced?

If you haven’t done so already then you may take your former spouse/partner to court and get an order requiring him or her to pay support. Once the order is made it is filed with the FRO who then has the power to enforce it using various enforcement mechanisms.

If instead an order (or agreement) has been made, and filed with the FRO, and your former spouse/partner is not abiding by the order or making the payments then contact the FRO to ensure that they find some way to get the payments to you.

If that fails then your former partner/spouse will be taken to court and found to be in contempt of his or her orders and either fined or imprisoned.

However, the above only applies if you have not withdrawn from the services of the FRO. If you have withdrawn then you will need to re-file the order or agreement with the FRO so that it can start enforcing the payments. In order to do so you will need to pay a $50.00 fee.

If you find yourself in this position, you may contact the FRO Customer Service Unit or Enforcement Call Centre at 416-326-1817 (or toll free at: 1-800-267-4330).

Q: My Former Spouse/Partner’s Income Has Increased Dramatically. Can I Go to Court and Get an Order to Increase His Support Payments?

Yes. You may bring an application to vary an existing order when your former spouse or partner’s income increases dramatically.

The court will consider whether there has been enough of a “change in circumstances” to warrant an increase in support payments. They will also consider whether an increase will further the objectives of spousal support. Once that is determined and entitlement is found then the court may choose to order a new amount by inputting the relevant information into the Spousal Support Advisory Guidelines and then considering other relevant factors OR the court may choose to order another amount that is fair given the circumstances. The obligation of spouses to support one another justifies a variation in a pre-existing order whenever there is an increase in the paying parent’s income.

If instead you and your former spouse/partner have decided to arrange support in an agreement then you may change the agreement. Ensure that the change is consented to, signed and witnessed. Once you have changed the agreement ensure that you file it with the FRO for enforcement purposes.

Q: What Will Happen if I Don’t Make My Spousal Support Payments?

If you decide not to make your support payments then the FRO may take action and begin enforcing the order by using one (or more) of the following enforcement mechanisms:

• taking the payments directly from you, the paying parent.
• Deducting the payments directly from your wages or other sources of income, i.e. sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay and pensions.
• Registering a lien against your personal property or real estate
• Garnishing your bank account or garnishing 50% of a joint bank account that partly belongs to you.
• Making an order against another person who is helping you hide your income/assets.
• Suspending your driver license.
• Reporting you to the credit bureau (which would make it difficult for them to get a loan).
• Cancelling your passport.

If the FRO is unable to enforce the payments using one of the aforementioned mechanisms then you may be brought back to court and found to be in contempt of the order. The result of this finding would be the imposition of either a fine or term of imprisonment.

Q: Can My Former Spouse/Partner Avoid Making Spousal Support Payments by Filing for Bankruptcy?

No, he or she cannot. Child and spousal support are not affected by a claim for bankruptcy according to s. 178(1)(c) of the Bankruptcy and Insolvency Act (BIA):

Q: My Former Spouse/Partner Has Moved in With a New Partner. Do I Still Have to Pay Spousal Support?

Yes. According to a 2000 decision from the Ontario Superior Court of Justice a wife’s subsequent arrangement with a new partner is not an automatic bar to her entitlement to support.

However, it is a factor that should be taken into consideration when an application for a variation is brought. You can however choose to determine spousal support pursuant to a written agreement and then make remarriage or cohabitation by the recipient spouse a condition upon which support may be terminated.

Q: We Weren’t Married, but Lived Common-Law. Can I Still Get Spousal Support?

Yes, you may bring a claim under the Family Law Act which contemplates common-law couples.

However, in order for your claim to be successful, you must satisfy the extended definition of “spouse” under s. 29 of the Act. Therefore, to qualify you and your partner must have cohabited for a period of 3 years or longer, or the relationship must have been of some permanence and you and your partner must be either the natural or adoptive parents of a child.

Q: Do You Need to Keep Paying Spousal Support if Your Ex Gets Remarried?

Spousal support is money paid by one spouse to another after separation to contribute to the other spouse’s living expenses. The 1968 Divorce Act put into effect a gender-neutral set of rules relating to support. Either spouse may apply for support, and fault plays no role in the determination of whether support is owed.

Spousal support is dealt with in Part III of the Family Law Act. In that section, a “spouse” is defined as either a married spouse or two persons who have cohabitated for a period of three years or more, or who are in a “relationship of some permanence” if the two people have a child together. Accordingly, both married and unmarried cohabitating spouses may make an application for support.

A support applicant must first establish entitlement to support. There are three bases for entitlement to support: compensation, need, and contractual obligation.

As the spousal support payor or payee, you are probably wondering whether the payor must continue to pay if the payee gets remarried. The need to continue paying support if your spouse gets remarried or enters into a new cohabitation depends on the basis for entitlement to support.

For example, if entitlement is based on need alone, then the payee spouse will not necessarily be barred from receiving support because of cohabitation with a new partner (Ewart v Ewart). In order for a court to vary [change] or terminate a spousal support obligation, it must be satisfied that a change in the condition, means, needs, and other circumstances of either spouse has occurred since the making of the order (s. 17 Divorce Act).

Thus, each case must be determined on its specific facts.

The effect of remarriage on needs-based support will generally be more significant than in the case of compensatory or contractually based support. This is because remarriage does not compensate the receiving spouse for that which was forgone in an earlier marriage.

When, however, a spouse with a demonstrated need remarries, the burden falls somewhat on the new spouse to meet that need. Although the burden does not shift in its entirety, the beginning of the new marriage signifies a shift in the burden that may ultimately lead to a reduction or termination of the first spouse’s support obligation (Kelly v Kelly).

It is important to note that in making decisions concerning whether a payor spouse must continue to pay support after their ex has remarried or begun cohabitation with a new partner, a court will consider the objectives of a variation order for spousal support. There are four objectives: (1) to recognize any economic advantages or disadvantages to the former spouses arising from the marriage and its breakdown; (2) to apportion the financial consequences arising from the care of any child of the marriage over and above any obligation for the support of the child between the former spouses; (3) to relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (4) in so far as is practicable, to promote the economic self-sufficiency of each former spouse within a reasonable period of time (s. 17(7) Divorce Act).

In the end, a court will decide whether termination of support is appropriate given the new relationship entered into by the payee spouse.

If you are a payor or payee spouse and are curious about your support rights and obligations, please contact Feldstein Family Law Group to book an appointment with one of our lawyers.