Spousal support can be paid by both married and common law couples. Spousal support can be owed to married spouses who are separated, but not divorced.
We normally use the term “spouse” to refer to married partners. However, the definition of “spouse” under the section of the Family Law Act pertaining to spousal support, includes common law partners:
“either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”)”
Statutes: Married vs Common Law
There are two statutes which provide the authority for courts to award spousal support: The Family Law Act, and the Divorce Act. The Family Law Act is an Ontario provincial legislation. The Divorce Act is a federal legislation. Your family lawyer could better advise you of the statutes and rules which apply to your case.
If you were married, then you may apply for spousal support under either of the Divorce Act or the Family Law Act. Common law couples may only apply under the Family Law Act. You will have to, in your Application form, check the boxes requesting a remedy under the appropriate legislation.
There are circumstance which would allow a married person to seek spousal support through the provincial Family Law Act. This is possible where a married couple lives separate and apart – and wishes to continue to do so without getting a divorce. If they do apply for Spousal Support under the Family Law Act, and one of them later decides to seek a divorce and a new spousal support proceeding (under the federal statute), the provincial proceeding can be stayed and a new one commenced.
If you were in a common law relationship, or you had a child together and cohabitated in a relationship of some permanence, then you would only be able to apply for spousal support under the Family Law Act.
Is spousal support different for married and common law couples?
Spousal support determinations under the Divorce Act and the Family Law Act are largely similar. In either case, the Spousal Support Advisory Guidelines are likely to apply. However, you will apply under the Divorce Act to the Superior court and you will apply under the Family Law Act to the Provincial Court. In Jurisdictions where there is a unified family court, you don’t have to worry about this as the two courts are housed in one building.
There are a few minor differences but in most cases the results are similar. Your lawyer can better advise you of these differences, but in most cases they will not be important.
Are you owed Spousal Support?
Spousal support is not granted in every case. The court uses its own approach to decide if spousal support is even owed. Only once it decides that spousal support is owed will the court will then apply its own approach to determine the amount of spousal support which is to be paid.
Whether or not spousal support is even awarded is based on the means and needs of spouses, length of cohabitation, functions performed during the relationship, and any prior orders or contractual agreements. Contrary to popular belief, misconduct, cruelty and adultery are not considerations. On the other hand, conduct that is so unconscionable as to amount to a repudiation of the relationship can cause the court to entirely reject the awarding of spousal support.
How much Spousal Support?
The question of amount is based on the economic advantages and disadvantages resulting from a relationship or its breakdown, the past and future financial consequences of caring for children beyond the scope of child support, and economic hardship. Spousal support also promotes economic self-sufficiency. In most Ontario cases, the Spousal Support Advisory Guidelines are applied to determine the amount of spousal support owed.
The Spousal Support Advisory Guidelines provide two formulas, one involving the payment of child support and one without. They also offer high, low and medium coefficients to determine spousal support obligations. Ask your family lawyer to calculate low, medium, and high ranges of payment so that an agreement can be reached.
Judges usually use the Spousal Support Advisory Guidelines but are not obligated to.
Sworn Financial Statements
The Family Law Rules were recently updated to require a financial statement with every Application and Response. This is a welcome change as full financial disclosure is necessary to even begin to address the question of spousal support as the financial information must be available for anyone to begin to start. Sworn financial statements must be up to date and must be based on full disclosure. A lawyer can help you better prepare your documents and protect you in case your former spouse is hiding income and assets.
The form of spousal support
Typically the court awards monthly spousal support. On rare occasions the court will make lump sum payments.
If you arrive at an out-of-court settlement of your spousal support, you may have more control over the form, duration, and amount of spousal support.
Spousal support can be sought on a periodic monthly basis or on a lump sum basis. Lump sum payments are used when the reliability of periodic payments is in question or when the parties want finality. The duration of payments can either be indefinite or definite. You can agree to review periodic spousal support by setting the frequency of and triggers for review. You can also agree to terminate payments upon a future date or the happening of an event such as, retirement, re-marriage or returning to work.
If they are particularly acrimonious, a couple may want nothing to do with each other and a lump sum payment would allow them to sever ties.
Ongoing spousal support payments are tax deductible to the payor spouse. Lump sum payments are not tax deductible.
If you cannot wait for court proceedings to finish to obtain spousal support payments, then you can seek an interim order for the payment of spousal support. This would be done via motion.
Child Support vs Spousal Support
Child support payments take precedent over spousal support. The courts will always choose to award child support to the fullest, consistent with the child support guidelines. They are very good about sticking to the guidelines for child support. When it comes to spousal support, they are much more flexible. Courts will reduce spousal support payments where the financial burden on the paying parent is overwhelming.
The greatest support orders that are we see are in long term relationships which end around the age of retirement. If one partner was a stay at home parent who didn’t work, and therefore has a poor resume and career prospects who cannot reasonably be expected to get into the working world, to earn enough money to support the lifestyle to which they were accustomed – then that party is going to get a large spousal support payment. In these cases, divorce lawyers are very important as the spousal support payments will be large and long.
Gay couples are treated like any other couple when it comes to spousal support.
Family Responsibility Office
Spousal support is enforceable by the Family Responsibility Office, which can take over the transfer of funds between payor and payee. The Family Responsibility Office has additional measures to enforce spousal support payments. For example, they can garnish wages, garnish money which is due the payor from the government of Canada, suspend a driver’s licence or other licence, place a lien on property, and other things can be done to enforce payment.
For the benefit of both the payor and payee, the Family Responsibility Office can keep track of payments. Additionally, when making spousal support payments, it is advisable to obtain a record of the transaction to ensure that you are credited for making a payment.