Spousal Support

spousal supportThe foundation for resolving family law disputes is the full and open sharing of the financial circumstances of each spouse or partner and of the children. This disclosure provides the factual basis from which the children’s expenses today and in the future can be accommodated. It entitles a spouse to negotiate an appropriate amount and duration of financial support.

Spousal Support Advisory Guidelines

The most recent version of the Spousal Support Advisory Guidelines (SSAG) in 2008 offered an efficient computational digest of the application of the many legislated factors relating to spousal support. The computation produces a suggested range of financial support payable over a period of time. Different variables can modify the range of the amount of support. The SSAGs do not apply to every family and where applicable the ranges are open to negotiation by clients.

Entitlement

A discussion on whether a spouse should be paying financial support to the other and for how long begins with the issue of entitlement.

Spouses who are married and those in common-law relationships of some permanence, male or female, are entitled to assert a claim for support. Whether the other spouse and their legal counsel agree with the assertion of such a claim will depend on many factors.

Financial support can also be claimed by a parent in financial need against his or her children before the parent turns to a social agency for assistance.

Factors in Consideration

The essential factors that spouses and their lawyers should consider include:

  • the length of cohabitation prior to the date of marriage, the duration of the marriage itself, and whether the parties actually ever did marry (all of which influence the length of time one spouse may have been financially dependent on the other)
  • any economic advantage or disadvantage to the spouses arising from the relationship or its breakdown
  • any children of the marriage or of the spouses’ cohabitation, and how the financial care for the children was apportioned between the parents
  • a demonstrated need for financial support on one spouse’s part, and the other spouse’s ability to provide such support
  • a difference in lifestyle during the marriage compared to after the breakdown of the relationship
  • any illness or disability that prevents being able to live independently
  • any need to retrain in a new field of employment or obtain skills upgrading, to enable a spouse to become self-supporting in a reasonable time frame

The types of financial support for a spouse may include:

  • periodic, meaning the payments are recurring, for example, monthly or annually. (These payments will attract tax consequences to the recipient spouse and a tax deduction to the paying spouse.)
  • lump-sum payment, which has no tax consequences for either spouse

Support payments may go directly to the recipient spouse in the form of a cheque or electronic direct deposit. If there is a risk that the payer cannot be relied upon to pay the periodic support obligation, payment may be directed to the Family Responsibility Office, an agency of the Ontario government. In event of a default in payment, the FRO will initiate enforcement measures against the payer.

Duration

The duration of any spousal support obligation is another aspect to be considered and negotiated between the spouses once entitlement to receive the financial support has been agreed upon.

The support may be a temporary or short-term measure to stabilize the spouse’s financial situation until the spouse is able to upgrade educational requirements for a new career or establish a new business.

For example, a long-term traditional marriage saw one spouse stay home to care for and raise the children and manage the household. Being out of the workforce for a significant period of time meant that spouse lacked the means to establish a retirement fund or capital resources from which to become self-supporting after children left home. By contrast, the main income earner was able to put aside funds for investments, become a beneficiary of an employer-sponsored pension plan, or establish a solid family business or professional partnership, leading to a comfortable retirement.

In these often decades-long marriages, the stay-at-home spouse would be economically disadvantaged and certainly entitled to financial support from the other spouse. Long-term financial support would be considered by the spouses, together with any equalization payment owing from one spouse to the other and any other noteworthy circumstances.