What Is Spousal Support?
n Ontario, spousal support is money paid from one spouse to the other for financial support upon the breakdown of a relationship.
A couple is said to have been in a relationship if they were legally married; they were in a common-law relationship for at least three years; or they had a biological child or adopted a child together and were in a relationship of some permanence.
Do I Have to Pay Spousal Support?
Spousal support is not guaranteed after the breakdown of a relationship, however, there are a number of factors that may entitle someone to spousal support. For example, you or your spouse/partner may be required to pay spousal support if one of your incomes is higher than the other. The spouse/partner that pays the spousal support is referred to as the “payor” and the spouse that receives the spousal support is called the “support recipient.”
Your spouse/partner must show that they are entitled to spousal support, there is no automatic entitlement.
There are three bases of entitlement:
- Compensatory – an example of which would be someone who is leaving a traditional marriage, did not work during the marriage and instead concentrated on traditional roles such as taking care of the house and/or child(ren);
- Non-compensatory – this is determined on a needs basis. An example would be where there is a large income discrepancy and the recipient spouse is leaving the relationship in a compromised financial position; or
- Contractual – you and your spouse/partner signed a Marriage or Cohabitation Contract that says you will pay them spousal support upon the breakdown of the relationship.
If your spouse/partner is able to show entitlement for spousal support, the quantum and duration will depend on things like:
- How long you and your spouse/partner lived together;
- If you have a child(ren) with your spouse/partner and whether the spouse/partner has been caring for them;
- Each spouse/partner’s income;
- Each spouse/partner’s age; and
- The roles each spouse/partner had during the marriage.
How Is Spousal Support Calculated?
Although it is not law, Courts will often use the Spousal Support Advisory Guidelines to assist them in determining the quantum and duration of spousal support payable. However, the Guidelines allow for variation. The Spousal Support Advisory Guidelines are calculated using special software. Speaking to a lawyer about your unique situation and allowing them to input your details into the software will provide a better.
The Guidelines will provide a range for both quantum and duration of spousal support. The Guidelines will provide a formula calculation for low, mid, and high range support amounts, as well as the length of time for which spousal support may be payable. A court may choose to order the exact number as calculated by the Guidelines or can choose to be flexible in assigning a quantum or duration for spousal support.
The Guidelines will consider:
- How long you and your spouse/partner have lived together;
- If you and your spouse/partner have a child(ren) together and whether your spouse/partner has been caring for them;
- Each spouse/partner’s income;
- Each spouse/partner’s age;
- The roles each spouse/partner had during the marriage;
- Each spouse/partner’s mental and physical health in relation to their ability to obtain and maintain gainful employment; and
- The ability of each spouse/partner to support themselves.
Spousal support amounts may be paid for longer durations and higher quantum where:
- There is a big difference between the spouse/partners’ incomes;
- The spouses/partners have lived together for a long time; and/or
- They have a child(ren) together.
Spousal support can be made in monthly support payments or as a lump sum payment. There are tax considerations to both which we suggest discussing with a lawyer or an accountant prior to deciding how to receive or pay spousal support.
How Long Do I Have to Pay Spousal Support For?
For couples who have separated but did not have children, support will generally range from one-half to one year of support for each year of cohabitation or marriage. The duration of spousal support payable will often become indefinite if the cohabitation and/or marriage has lasted for longer than twenty (20) years as this is considered a “long marriage.”
An important factor for the Guidelines calculation is age. The Guidelines will suggest indefinite support if the marriage has lasted longer than five years plus the years the couple has been cohabiting or have been married added to the age of the recipient spouse/partner at the date of separation totals sixty-five (65) or more. This is referred to as the “Rule of 65.”
Sorting Out Spousal Support Is Not a Simple Matter
For a free consultation with an AGB family lawyer to talk about protecting your rights and understanding your obligations in the event of marriage breakdown, call us today in Ottawa at 613-232-8832 or email us at email@example.com.
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