Spousal Support – basics you need to know

Spousal support in Canada is very different than child support. This article breaks down what you need to know.

Spousal Support – basics you need to know

That is quite a lot to unpack in a short blog post. We will give you a high level of explanation here.

Spousal support and child support are very different things.

The fact that your relationship ended does not mean that you or your spouse is entitled, right away, to spousal support.

To talk about spousal support, the first question is are you a spouse? To be a spouse in Ontario, you must either be married, have lived together for at least three years or have a child together.

If you are a spouse, the next question is, are you entitled to spousal support? If you (or your spouse) are not entitled to support, you do not get to receive it (or pay it). It’s akin to playing a board game, if you do not pass go, you do not collect $200. That being said, spousal support is no game.

There are the Spousal Support Advisory Guidelines, we will call them the Guidelines, The Guidelines do not talk about entitlement. They talk about the amount of spousal support and how long it is payable, so we will talk about them later on.

Entitlement to spousal support can be found in one of three ways.

1/ By Contract. This could be from a domestic agreement you made between yourself and your spouse before you married or lived common law. Casually they are referred to in the public as a pre-nup. We do not use that term in Ontario law, but most people understand that it refers to a contract you make before getting into an intimate partner relationship. Such an agreement can say that upon a breakdown, you would pay (or receive) a certain amount of spousal support for a certain amount of time.

2/ By a needs-based entitlement. These are also known as non-compensatory spousal support cases. They can be related to people who have no children, no change in employment for either spouse or there is a difference in resources. Typically, one spouse needs a bit of assistance to be on their own “two feet” again. The other spouse must have the means to pay. These are often fixed term supports or sometimes a lump sum support. A difference between your and your spouse’s income does not mean you or your spouse is entitled to spousal support right away.

3/ Compensatory entitlement. This is the most common type of entitlement.  These are couples where they have children, often one person has taken time out of the workforce, or reduced their income to take on more childcare, or cases where one spouse has supported the other in their job. These cases typically show one spouse experiencing a financial detriment related to the relationship. This can include, relocating for the benefit of the other spouse’s career, putting their own career on old, or stopping working altogether, all in support of the higher income earning spouse. These cases clearly land in the compensatory category.

Sometimes, entitlement can be found in more than one way. Especially in long term relationships, the spousal support entitlement can be both by needs-based and by compensatory.

How much support gets paid?

This is where the Guidelines come in. The Guidelines are broad because spousal support is based on multiple factors. Those factors include, both spouse’s incomes, the number of children you have, the ages of the children, the length of the spousal relationship, your ages and several others we have not listed just to name a few. It is not a simple table that you can pull up and come to a fixed number.

If you are not in court, you have many options to negotiate a support payment resolution. Spousal support can be paid monthly; it can be paid by a lump sum (one-time payment). You can negotiate amounts differently than the Guidelines suggest.

Spousal support can be tax deductible for you if you are paying monthly. The receiving parent would have to pay income tax on those payments. If you are considering a lump sum, you cannot deduct that from your taxable income, and the receiving parent would not have to pay income tax on a lump sum.

When there are children, Child support comes before spousal support. After child support is paid, then we look at what is left over in the pool of income between the spouses. The child support amount suppresses (reduces) the amount of spousal support because there is only so much income. Often as children “age out” of child support, spousal support can come up a bit to fill in the gap for the receiving parent.

Trying to calculate spousal support in your unique circumstances is not simple in any situation. There is no simple way to evaluate the amount of spousal support, especially when children are involved. You can look at online calculators, but if you do not know what is relevant to put in, the answer may not be within the law as it relates to your personal situation. You should be speaking to an experienced Ontario family law lawyer to understand your specific situation.

How long is spousal support paid?

The Guidelines say that if there were no children, typically support should be paid for between 50% and 100% of the length (duration) of the relationship. Assuming that there are no financial changes in either spouse’s income that could affect support.

Let’s use an example. Chris and Amy have been together for 5 years and are both 35 years old at separation. Chris earns $50,000 per year and Amy earns $100,000 per year.

They separate after living together in a common law relationship. They have no children. In this example, we will assume that Chris is entitled to spousal support by a needs-based entitlement.

Under the Guidelines, Chris could receive monthly support payable for 2.5 years to 5 years. This range represents 50% to 100% of the length of their relationship.

The amount of support and the length of time support is owed can change if a spouse’s financial circumstances change. In our example, let’s say Amy started paying spousal support to Chris right after separation. If Chris gets a new job a year after separation and earns $90,000, he has only received support from Amy for a year. Even though the duration of spousal support should be between 2.5 and 5 years, Amy could ask to reduce the amount of spousal support or stop paying any support after only a year because of this change in Chris’ income.

If Chris and Amy had children, there is no set duration for the length of spousal support tied to the length of their relationship. The length of time that spousal support is payable is then attached to the ages of the children. If Chris and Amy were married for 15 years and had 3 children, the situation would be very different. If there are dependent children at separation, then that would likely lead to compensatory support and a longer term of spousal support being payable. Where the children live, the amount of the children’s special expenses and who pays for those expenses, can also change spousal support. As you can see, it is not straightforward.

If spousal support is an issue in your separation, you really need to get advice before committing to a solution. Give us a call.