Spousal Support

Do I qualify for support?

Under the Divorce Act, a “spouse” qualifies for support. A “spouse” under this legislation is defined as either a man or a woman who is or was married. However, being married does not necessarily automatically entitle a “spouse” to support.

Do I qualify if I was never legally married?

Under the Family Law Act, a “spouse” or “same-sex partner” (partner) can apply for spousal support.

The Family Law Act extends the definition of “spouse” to mean the following:

  1. A man or woman who is married or has entered into a marriage that is voidable or void;
  2. A man or woman who is not married but has continuously lived with the other partner for at least three years;
  3. A man or woman who have lived together in a relationship of some permanence, if they are the natural or adoptive parents of a child

How is the amount of spousal support determined?

According to the Supreme Court decision in Moge v. Moge, a court decides on spousal support under the Divorce Act by considering the following factors:

  • The condition, means, needs of each spouse
  • The length of time spouses lived together
  • What effect the marriage had on each spouse’s economic prospects
  • The functions performed by each spouse while living together
  • Any order, agreement or arrangement relating to support of either spouse
  • Any misconduct by either spouse in relation to the marriage
  • Ensuring a fair and equitable distribution of money and assets between the spouses

Under the Family Law Act, spousal support is determined by the following:

  • Looking at what each spouse or partner contributed to the relationship
  • Looking at the economic consequences of the relationship for each spouse or partner
  • Ensuring a equitable sharing of the economic burden of raising a child or children;
  • Ensuring that each spouse or partner is able to support themselves after a relationship breaks down
  • Ensuring that any financial hardship suffered by either spouse or partner because of the breakdown of the relationship is relieved

The ultimate goal of spousal support under both the Divorce Act and the Family Law Act is to relieve any hardship faced by a “spouse” or “partners” because of the breakdown in a marriage/relationship.

Does spousal support continue indefinitely?

In Ontario, the Ontario Court of Appeal has ruled in cases such as Kent v. Frolick that the trend is going away from time-limited support orders.

The Ontario Court of Appeal further stated that time-limited support orders should only be awarded in cases where there are unique circumstances.

What are the objectives of spousal support?

A spouse or partner must be able to demonstrate to the Court a need for spousal support.

A court determines “need” by considering:

  • The role of the spouse or partner during the marriage/relationship;
  • The different roles assumed by each of the spouses or partners during the breakdown of the marriage/relationship
  • Any express or implied agreement or arrangements between the spouses or partners during the marriage/relationship
  • Whether the spouses or partners require a compensation for lost economic opportunities arising from being married or in a relationship
  • Whether a spouse can survive on their own without support from the other spouse or partner

In short, spouses or partners may now be obliged to pay spousal support to the other if they have the capacity to do so. This is the case even if there was no express or implied agreement or the other spouse or partner does not require compensation.

Can spousal support orders be varied?

A court will vary a spousal support order if there has been a material and significant change in circumstances that has occurred to the parties between the time the order was made and the time a spouse or partner requests a court to change the order.

The courts will entertain a variation in a spousal support order in these circumstances:

  • The economic conditions of either spouse or partner has changed
  • Either spouse or partner has lost their job
  • Either spouse or partner has received unanticipated income
  • Either spouse or partner has unexpectedly lost income
  • Serious inflation has occurred
  • Either spouse or partner has received a significant promotion
  • Either spouse or partner has suffered a change in their health
  • A court receives evidence relevant to spousal support—evidence that was not presented when a spousal support was originally made.

Even if a spousal support order says the order is final a court can review a spousal support order.

Does remarriage end spousal support?

The Supreme Court ruled in Willick v. Willick and L.G. v. G.B. that remarriage by either the paying spouse or partner or the recipient spouse or partner does not automatically trigger the termination of spousal support.

How do I collect spousal support if my former spouse or partner refuses to pay?

spousal support orders can be enforced one of two ways:

  1. A spouse or partner can return to the Court that made the order and request that the Court enforce the order and take steps to collect the arrears.
  2. The recipient spouse or partner under The Family Responsibility and Support Arrears Enforcement Act can file a court order with the director of the Family Responsibility Office.

Either one of these steps will result in the income of the paying spouse or partner being garnished or their assets being liquidated to pay for spousal support.

For more information, please contact:

Shawyer Family Law
504-2300 Dufferin Street
Toronto, ON  M6A 3B2
416-398-4044 ext 25
robert@shawyerlaw.ca