Spousal support is the money paid by one spouse to the other after they separate or divorce. The purpose of spousal support is to:
- help a spouse become financially self-sufficient
- prevent a spouse from experiencing serious financial difficulty due to the breakdown of the relationship
- share the costs of caring for children
- compensate one spouse for being financially disadvantaged during the relationship, for example, if one person stopped working to take care of children
Spousal support is not an automatic part of divorce or separation.
You and your spouse can either:
- negotiate spousal support payments as part of a separation agreement
- ask a judge to decide, if you cannot agree, and they will determine the amount of support and how long it should be paid
There are 3 ways your partner can be entitled to spousal support. More than one of them may apply to your situation:
- Your partner had responsibilities during the relationship, such as taking care of your children or helping you build your career. Because of that your partner lost the chance to make their own career. This is called “compensatory spousal support”;
- The breakdown of your relationship leaves your partner in need and you have enough income and assets to pay spousal support. This is called needs-based support or “non-compensatory spousal support”;
- You and your partner have a cohabitation agreement, marriage contract, or other agreement that says if you separate, you will pay spousal support. This is called “contractual spousal support”.
The court looks at factors like:
- how long you and your partner lived together
- if you have children together and who has been caring for them
- each partner’s income
- each partner’s overall financial situation
Purpose of Spousal Support
A spouse may have to pay spousal support if such payment meets one or more of the main purposes of spousal support set out in the Divorce Act. They are:
- To compensate a spouse who sacrifices his or her ability to earn income during the marriage;
- To compensate a spouse for the ongoing care of children, over and above any child support obligation; or,
- To help a spouse in financial need arising from the breakdown of the marriage.
Even if your partner is entitled to spousal support, the law expects them to try to become self-supporting as soon as possible after separation. This is sometimes called a “duty to become self-sufficient”.
Spousal support may be short term, transitional, compensatory, long term, or permanent. The court will examine many factors to determine the proper spousal support award.
We will walk you through the details to help you understand whether or not spousal support is appropriate and if so, the amount and duration. Factors taken into consideration include:
- Length of the marriage
- Contribution by one spouse to the others education or business success
- Earning capacity of each spouse
- Age of each spouse
- The roles of each spouse during their marriage;
- The effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
- The ongoing responsibilities for care of the children, if any;
- Any previous orders, agreements or arrangements already made about spousal support.
Amount of spousal support
The amount of spousal support will depend on several factors, such as:
- if there is a large difference in income
- whether you have children together, and who has been caring for them
- your ages
- the roles that each person had during the relationship
- your mental and physical health
- your ability to support yourself
Changing spousal support amounts
If you or your spouse’s situation changes, it may be necessary to change the spousal support terms in your separation agreement or court order. Some changes that might require an update to the agreement or court order include:
- you or your partner’s income has changed
- the partner receiving support should now be able to support themselves
- the partner receiving spousal support re-marries
- the arrangements with the children have changed
How is spousal support calculated?
The calculation of spousal support is one of the most complex areas of family law. Many factors need to be considered to determine an amount that is fair and appropriate in each case. Most Canadian courts and family law professionals use the Spousal Support Advisory Guidelines when calculating spousal support. Unlike the Federal Child Support Guidelines, the Spousal Support Advisory Guidelines are not law. They help calculate appropriate spousal support amounts, whether for court orders or for out-of-court settlements and agreements.
How long will spousal support be paid?
The duration of support will be based on the facts of the case, such as the length of time the spouses lived together, or their ages at the time of separation. In some cases, spousal support may only be paid for a limited amount of time. In other cases, spousal support may continue unless there is a change in circumstances and the court makes a different order or the agreement is updated to reflect the change.
When can I stop paying spousal support?
If you are paying spousal support that is set out in a written agreement or in a court order, you must continue to pay unless:
- The order is changed by a court;
- You and your former spouse agree to change your agreement; or
- The conditions for stopping payment, as set out in the order or agreement, have been met.
A court may only change a spousal support order when justified by an important change in the circumstances of either spouse. For example, if the support payor loses his or her job after the support order was made and he or she can no longer pay the amount that was ordered, a court may then decide that the support order should be changed.
If you and your former spouse have a spousal support agreement, and either of you experiences a change in your circumstances, you may wish to change your agreement to reflect your new situation. However, both you and your former spouse will need to consent to any proposed changes to your agreement before they can take effect.
If your order or agreement clearly states that spousal support is to end on a particular date or on the happening of a certain event, then payment of support can stop at that point.
A lawyer can help you determine the appropriate amount of support for your circumstances. Ask your lawyer to explain the Spousal Support Advisory Guidelines (SSAGs) and how they apply to your situation. The SSAGs are only guidelines but are often used by lawyers and judges to help decide how much spousal support should be paid, and for how long.