For couples facing divorce or separation, the amount of spousal support they receive or will need to provide is a top concern.
The Court may order a spouse to pay spousal support under either the Family Law Act of the Divorce Act. Both statutes set out criteria which are intended to guide the court in its award.
The federal Divorce Act sets out the spousal support rules for married couples who divorce. Since the Divorce Act is a federal law, the rules apply across Canada.
Provincial or territorial laws set out the rules for unmarried couples who were in a common-law relationship and for married couples who separate but who are not divorcing.
Under the federal Divorce Act, spousal support is most likely to be paid when there is a big difference between the spouses’ incomes after they separate. However, this is not always the case. A court may decide that the spouse with the lower income is not entitled to support. The court may reach this decision if that spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the relationship.
The three most difficult questions with respect to spousal support are entitlement, quantum and duration.
Although both the Family Law Act and the Divorce Act set out criteria which are intended to guide the court in its award, the area is a difficult one with frequently conflicting cases. A spousal support award calls for the exercise of the judicial discretion based on the application of the law to the facts of each case. There is no set formula for the amount of spousal support, although there are a set of non binding spousal support guidelines that judges and legal professionals use.
People require the knowledge of an experienced spousal support lawyer to guide them given their special circumstances and individual concerns.
For more information about spousal support in Ontario, please contact Anna Boulman at 1-877-405-5004.
How do judges decide on spousal support?
A judge may decide that one spouse must pay support because of his or her ability to pay and the other spouse’s financial need. Or the reason may be to compensate the other spouse for unpaid work that he or she did during the relationship.
If the judge decides there should be spousal support, the judge must then decide the amount of support and how long it must be paid. The judge will take into account factors such as:
- the length of the relationship,
- whether there are children and what arrangements have been made for them,
- the roles the spouses played during the relationship,
- the age of each spouse, and
- each spouses financial situation.
The judge may also consider Spousal Support Advisory Guidelines (SSAGs).
How is spousal support paid?
Spousal Support is usually paid each month, but sometimes it can be paid in a “lump sum” (all together).
How are spousal support payments taxed?
Monthly spousal support is taxable for the spouse receiving support and tax deductible for the spouse paying support.
But if support is paid all at once in a lump sum it not taxable for the recipient and the payor is not able to claim it as a tax deduction.
 Divorce Act, R.S. 1985, c. 3 (2nd Supp)