This area of the law has undergone major changes in the last two decades, and the pace of that change has quickened in the last five years alone. Spousal support rules and agreements are likely to continue undergoing significant reform over the coming years as circumstances change within the family unit and the economy.
Spousal support applies not just to individuals who are legally married, but it can also apply to common law spouses. Courts take many factors into account when determining whether spousal support (also know as alimony) is applicable, how much spousal support may be payable, and for how long it should be paid.
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Spousal support is commonly determined based on a monthly payment amount (periodic). This type of periodic support is tax deductible to the payor if there is a written agreement or court order mandating it, and periodic support must be included in the recipient’s income. However, spousal support also can be paid in one or more lump sums, which are neither deductible to the payor nor do they need to be included in the recipient’s income (the amounts of such lump sum payments usually consider these tax consequences).If the spouses have children, child support will normally take priority in payment over any order for spousal support. In determining spousal support, the court usually does not consider the conduct or past conduct of the spouses.
Few areas of family law have the potential for as much conflict as spousal support. The law of spousal support is briefly reviewed below, together with the challenges faced by each spouse. If you have any questions about your obligations or rights, contact a Zeidman family lawyer for advice.
Definition of Spouse
Only a legally married individual can apply for spousal support under the Divorce Act (DA). However, the Family Law Act (FLA) enables common law spouses to apply for spousal support too. Section 1(1) of the FLA defines a spouse as either of two people who are married to each other (including a same sex marriage). However, for the purpose of support obligations, section 29 of the FLA expands the definition of spouse to include either of two people who are not married but:
- who have cohabited continuously for a period of not less than three years; or
- who have cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child.
If you fit into one of the categories of a spouse under the FLA, you may be eligible to receive spousal support or you may be responsible for paying spousal support.
Factors Considered in Spousal Support
Section 33(8) of the Family Law Act (FLA) states that an order for spousal support should:
- recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
- share the economic burden of child support equitably;
- make fair provision to assist the spouse to become able to contribute to his or her own support; and
- relieve financial hardship if not already done by an order under the FLA
Section 33(9) of the FLA requires judges to consider all the circumstances of the parties in determining the amount and duration, if any, of spousal support. Section 33(9) goes on to list various factors to consider:
- the parties’ current assets and means;
- the assets and means that the parties are likely to have in the future;
- the dependant’s capacity to contribute to his or her own support;
- the respondent’s capacity to provide support;
- the parties’ age and physical and mental health;
- the dependant’s needs, giving regard to the accustomed standard of living while the parties resided together;
- the measure available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
- any legal obligation for the parties to provide support for another person;
- the desirability of the parties remaining at home to care for a child;
- a contribution by the dependant to the realization of the respondent’s career potential;
- the length of time the parties cohabited;
- the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation;
- whether the spouse has undertaken the care of a child who is 18 years of age or older and unable to withdraw from the charge of their parents;
- whether the spouse has undertaken to assist in the continuation of a program of education for a child 18 years of age or older and who is unable to withdraw from the charge of their parents;
- any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support;
- the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
- any other legal right of the dependant to support, other than out of public money.
Spousal Support Advisory Guidelines
In 2005, the Justice Department of Canada released a draft proposal entitled the Spousal Support Advisory Guidelines (SSAG) to help deal with one of the most difficult areas in current practice of family law. The SSAG are not legislated or mandatory, but the courts now have a tool that most judges use at their discretion in determining the reasonableness of the amount of spousal support calculated under the law (i.e. legislation).
To oversimplify, the SSAG use the spouse’s incomes and other relevant information (such as length of the spousal relationship, age of the spouses, the child custody arrangements, and the ages of the children) to arrive at a range from low to high of how much monthly spousal support should be paid. In many cases, if the amount of spousal support arrived at under the legislation is within this range, it will be considered reasonable and be applied. However, the SSAG are not applicable in each situation, and thus caution must be used in referencing them. Contact a Zeidman family lawyer to determine the applicability of the SSAG to your situation.
The income levels of each spouse are central to the determination of spousal support. When a payor is a salaried employee, this determination can be simple. However, there are many situations that arise where the actual income of the payor is in question:
Income Fluctuations. Court’s may review a payor’s income over the last three years to consider any patterns of income, any fluctuations of income, or any non-recurring amounts;
Private Corporations. If your spouse is a shareholder, director or officer of a corporation, the court may consider income fluctuations and decide your spouse’s income includes all or party of the pretax income of the corporation.
Imputing Income. The court may impute income to a spouse for support purposes when it considers it appropriate. These may include situations where:
- the spouse is unemployed or underemployed
- it appears that income has been diverted
- the spouse’s property is not reasonably used to generate income
- the spouse has failed to give income information when legally required to do so
- the spouse unreasonably deducts expenses from income (family law judges can scrutinize deductions even more than Canada Revenue Agency)
- the spouse is a beneficiary under a trust and is receiving or will receive income or benefits from the trust.