James and Marlene have been married for 25 years, they have two children who no longer live at home. Recently they have decided to get a divorce. James has been the primary breadwinner for the family while Marlene put her career on pause to care for the children. With a divorce on the horizon, both are concerned about their financial futures. James is approaching retirement and Marlene has started to work part-time. Both Marlene and James have heard about spousal support but are not sure what spousal support is and how it applies to them.
This article is a primer for people like Marlene and James or anyone who is unsure where to start with spousal support. The article will provide basic answers to the following:
- What is spousal support?
- Who is entitled to spousal support?
- How is spousal support calculated?
- How long do you have to pay spousal support?
- How are spousal support payments enforced?
As each situation is unique, this article is meant as a guide only. The legal professionals at Galbraith Family Law are here to guide you through this complex process.
What Is Spousal Support?
As the scenario above illustrates, spousal support situations are often challenging to define. Many factors such as income, length of relationship and children all impact whether or not spousal support will be paid, how much will be paid, and for how long. To aid you in your learning about spousal support, we have put together this primer on the basics of support in Ontario. It is important to seek legal advice about spousal support in addition to points laid out in this guide.
In some cases, the spouse with a higher income may be required to pay funds to the spouse with a lower income as a monthly payment or as a lump sum. These payments are called spousal support or are sometimes referred to as alimony. According to the Divorce Act, there are three main purposes that spousal support serves:
- Compensation for when one spouse gives up their ability to earn income during the marriage;
- Compensation for a spouse who is responsible for ongoing childcare; or,
- To aid a person who needs financial support as a result of a marriage breakdown.
Who Is Entitled To Spousal Support?
When it comes to common-law relationships and spousal support, the factors taken into account are the same as those that are taken into account for married couples. The following is a list of factors that commonly influence who is entitled to spousal support:
- How much income each person has the ability to earn
- Length of time the relationship lasted
- The health of each party
- Role of each person during the relationship
- Economic repercussions of the divorce on each person
- How old each person is at the time of divorce
- Whether or not there are children still living at home
- Property and assets held by each person
Many people going through a divorce have questions about how spousal support affects them or how to avoid paying spousal support. Each case is unique, however, there are some factors that might mean no spousal support will be required. Here is a list of factors that might mean no spousal support will be paid:
- Both parties make comparable incomes
- The relationship was less than 5 years
- The couple does not have children
- Both parties are in good health
How Is Spousal Support Calculated?
If spousal support is required, it is important to know how much spousal support is to be paid. The Spousal Support Advisory Guidelines (SSAG) can be a useful tool in calculating the range of spousal support that one might be entitled to. The SSAG uses a series of formulas to anticipate the amount of spousal support and the length of time that it must be paid for. The SSAG only provides a range of spousal support amounts and durations that are not legally binding, although in many cases judges do use the SSAG as a reference point.
Children and income are just two factors of many in spousal support calculations, however, they are quite important.
There are two general formulas used to calculate spousal support amounts in Ontario. These are the ‘Without Child Formula’ and the ‘With Child Formula’. The lawyers at Galbraith Family Law are experts in using these formulas to predict spousal support outcomes. Our lawyers can provide insight into why or why not spousal support might be required and the length of time that support might be required for.
Another key factor in determining how much spousal support should be paid is income and earning potential. It is crucial to understand the rules around what counts as income in Ontario. This can be even more challenging for those who are self-employed as they often write-off expenses to minimize income tax. Determining support for the self-employed is complicated and is best done in consultation with a family lawyer.
How Long Do You Have To Pay Spousal Support?
Whether or not the parties involved have children affects the length of time that spousal support will be paid. In situations where there are no children involved, the duration of time that spousal support must be paid can range from six months to one year for each year of marriage (or living common law). When children are involved, the time remaining until the youngest child finishes high school plays a role in determining the duration of support, as does the length of the marriage and the age of the person claiming support.
According to SSAG, when a couple has been married for 20 years or more, if support is awarded it will be for an indefinite duration. However, it is important to remember that the SSAG only provides guidelines and judges may offer different rulings. The best way to ensure a positive outcome is to discuss spousal support with a legal professional. The lawyers at Galbraith family law are experts in this area.
How Are Spousal Support Payments Enforced?
In Ontario, there is a government office called the Family Responsibility Responsibility Office (FRO). The FRO serves as a middleman between the payor of support and the payee. The FRO enforces both spousal support and child support payments and the court automatically files all support payments with the FRO. The payor submits all payments to the FRO, who then forwards the payment to the spouse who is receiving support. If payments are not made the FRO will step in and enforce the court’s decision.
This article has summarized some of the main concerns and questions that people have regarding spousal support in Ontario, it is, however, just the beginning. If you need help understanding your legal rights and responsibilities regarding spousal support in Ontario, please do not hesitate to reach out to the team at Galbraith Family Law.