SPOUSAL SUPPORT
Spousal support is often one of the more difficult issues to resolve in family law cases. Most, but not all parents are okay with paying Child support. Spousal support is often contentious.
If there are children entitled to child support, child support takes priority over spousal support.
Spousal support is particularly appropriate for longer marriages or cohabitations where there is a significant difference in incomes post-separation. Spousal support can be payable in very short marriages and cohabitations, too, but usually that results in smaller amounts of spousal support for a shorter period.
Usually, if spousal support is settled early, parties look to the Spousal Support Advisory Guidelines in making proposals.
Judges and parties are not required to apply the Spousal Support Advisory Guidelines, known as SSAGs for short marriages, but they should consider them.
Spousal Support Advisory Guidelines (SSAGs)
The SSAGs provide 2 formulas. The without child support formula which is used for couples who have no children and the with child support formula which is used when there are children and a concurrent child support obligation.
However, these guidelines are simply advisory and it is not necessary that they be used. The law views spousal relationships as financial partnerships. When the partnership breaks down, the person with more income or assets may have to pay support to the other.
To decide on how much spousal support and the length of time that it should be paid, the law says that judges must consider a number of factors, including how much the person asking for support needs to meet his or her needs, and how much the other person can afford to pay. A person may claim support to help him or her become financially self-sufficient or to keep from ending up in serious financial difficulty.
Advisory Spousal Support Guidelines are available to help parties discuss the appropriate amount of spousal support to be paid. If the parties proceed to court, the court may consider these guidelines in determining how much spousal support should be paid, but they are not binding.
Note: Spousal Support Guidelines are different from Child Support Guidelines, which the court is required to follow.
Who can get spousal support?
Both married and unmarried (common-law) spouses may be able to get spousal support, or may have to pay spousal support. If the spouses are not married, they must have lived together as a couple:
- for at least 3 years, or
- for any length of time if they were in a relationship of “some permanence” and had a child together.
Is there a limitation period for spousal support? No, not unless you were not married and separated before Jan 1, 2004
What is spousal support for?
The purposes of spousal support are to:
- recognize a spouse’s contributions to the relationship
- share the financial costs of caring for a child
- relieve financial hardship
- help a spouse become able to contribute to his or her own support
- correct any economic advantage or disadvantage to a spouse caused by the relationship or the relationship breakdown. For example, if a spouse gave up their job to care for the children, they may not be able to become self-supporting right away.
In most situations, spouses are expected to try to become self-supporting. This objective is also one of 4 objectives set out in the Divorce Act for spouses who were married.
How do judges decide on spousal support?
A judge may decide that one spouse must pay support because of their 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 for how long it must be paid. The judge will take into account things 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 spouse’s financial situation.
The judge may also consider the Spousal Support Advisory Guidelines (SSAGs).
What are the Spousal Support Advisory Guidelines? (SSAGs)?
The SSAGs are based on synthesizing many decided cases into a database
The SSAGs are only guides, but they are often used by lawyers and judges. The Guidelines cannot be used to decide if someone should get spousal support or not. That must be decided first.
Is it possible to get retroactive spousal support?
Depending on the circumstances, it is sometimes possible to get spousal support for a period of time before the application for support was made.
What if a spouse is on social assistance?
Separated spouses on social assistance must try to get any spousal support they might be entitled to.
How is spousal support enforced?
A provincial government office called the Family Responsibility Office (FRO) can enforce support payments. Separation agreements can be filed with the court and registered with the FRO. The court automatically files all support orders with the FRO and FRO enforces all support orders (child and spousal) unless both parties opt out
Sometimes recipient spouses withdraw from the FRO because it is easier to receive payments directly from the other spouse.
The FRO has different ways to collect unpaid support from the payor including:
- automatically deducted from their wages or Employment Insurance,
- register a charge (a lien) against their personal property or real estate, so they cannot sell it or transfer ownership without paying the amount owing,
- take money from (garnish) their bank account,
The FRO can also put pressure on spouses who do not make their support payments by:
- suspending their driver’s licence,
- reporting them to credit bureaus
The FRO cannot change the amount that the order or agreement says the payor has to pay.
The recipient does not have to pay for FRO’s services.
When every attempt is made to provide helpful information in this website, you may not rely on the information above as legal advice.