Navigating a separation or divorce can be daunting, particularly when there is a discrepancy in the spouses’ financial situation. Many of us sacrifice in a relationship, whether staying home to raise children or supporting a “breadwinner” spouse. Spousal support in Ontario aims to address these sacrifices by addressing financial disparities between spouses following a separation or divorce.
This blog will cover some frequently asked questions about how spousal support works in Ontario, including eligibility, enforcement, and everything in between.
When am I Eligible for Spousal Support in Ontario?
The courts will consider various factors when determining whether someone is eligible for spousal support. A spouse may be eligible for spousal support if they were married to or in a common-law relationship or had a child together and were in a relationship of some permanence with the other spouse.
Beyond meeting the requirement of the spouses being in a particular type of relationship, the court will look at the roles the parties played in the marriage, the length of the relationship, the impact of the separation on the spouses, and the parties’ respective needs to determine whether a spouse is entitled to spousal support.
Typically, a person seeking spousal support will need to establish at least one of the following:
- The existence of a legal agreement (like a prenuptial agreement or separation agreement) states that they are entitled to spousal support if the parties separate.
- The person seeking spousal support supported their spouse during the relationship (for example, staying at home to care for children or supporting a spouse with their career) to the detriment of their career or earning capacity.
- The person seeking spousal support requires financial support as a result of the separation, and the other spouse is capable of paying spousal support.
How is Spousal Support Calculated?
Spousal support can be negotiated as part of a separation agreement, meaning that the parties can attempt to negotiate an amount of spousal support that is reasonable for them without relying on formal guidelines. For example, a receiving spouse might be willing to accept less in spousal support payments to accommodate the paying spouse.
Regarding entitlement, however, the spousal support advisory guidelines help determine the appropriate amount of spousal support. Remember that spousal support advisory guidelines are not law. Determining the appropriate amount of spousal support can be a holistic exercise that looks at different factors, including the parties’ unique familial and financial situations. Calculating spousal support can be complex and challenging, and it’s critical to consult with an experienced divorce and family law lawyer for guidance in this area.
How Do I Get Spousal Support?
Spouses can set up spousal support in one of two ways. If the parties agree on the receiving spouse’s entitlement to spousal support, they can create a separation agreement outlining the terms of the support payments. If the parties don’t agree (either to the terms of the spousal support payments or whether the receiving spouse should receive spousal support at all), then the spouse seeking spousal support will need to bring a case to court and have a judge decide on their entitlement to spousal support.
Can Spousal Support Payments Change Over Time?
Spousal support payments can change over time if the parties’ situations change or if they otherwise agree to change their spousal support payments. For example, if the paying spouse’s income decreases, they may be unable to continue paying the same spousal support payments. Or, if the receiving spouse remarries or their income increases, they may no longer need spousal support payments.
When one or both parties want to adjust spousal support payments, they should first check their separation agreement or court order. The separation agreement might stipulate that the paying spouse will no longer need to pay spousal support if the receiving spouse remarries or otherwise provide direction on how such changes should be handled. Alternatively, the separation agreement might include a “review date” when the parties will review the spousal support amounts and make any appropriate changes.
If the separation agreement or court order is silent on what happens when a spouse wants to change their spousal support payments, the parties may need to draft a new separation agreement outlining the new spousal support payment terms or (in contentious cases) the spouse wishing to change the spousal support payments may need to seek a court order.
Can I Receive Child Support and Spousal Support?
Receiving spousal support does not preclude you from receiving child support from your spouse. Like spousal support, a paying spouse can agree to pay child support to a receiving spouse in a separation agreement, or the receiving spouse can seek a court order for child support.
Is Spousal Support Taxable?
Yes, spousal support is taxable, and the spouse receiving spousal support must pay income tax on that income. Note that spousal support payments are tax-deductible, meaning the spouse who pays spousal support can deduct those payments from their taxable income.
What If My Spouse Won’t Pay Spousal Support?
If a spouse refuses to pay child support or has a dispute regarding the amount or frequency of spousal support payments, the receiving spouse must obtain a court order.
However, suppose the parties already have a separation agreement or court order outlining their spousal support obligations, and the paying spouse refuses to pay or misses payments. In that case, the receiving spouse can contact Ontario’s Family Responsibility Office (FRO) for help enforcing their spousal support rights. Alternatively, the receiving spouse can seek a court order to deduct support from the paying spouse’s bank account or wages.
Spousal Support in Ontario: Final Thoughts
While we’ve covered some of the clients’ main questions about spousal support in Ontario above, many considerations go into spousal support claims. Whether assessing your eligibility for spousal support after a separation or dealing with a spouse who has stopped paying it, it’s important to consult an experienced divorce and family law lawyer for guidance. They can help determine your eligibility and entitlement for spousal support based on your unique situation and, when necessary, fight for your rights in court to ensure you receive appropriate support following a separation or divorce.
Contact Tierney Stauffer LLP for Comprehensive and Compassionate Advice on Family Law Claims
Tierney Stauffer LLP’s experienced divorce and family law lawyers help clients navigate the complicated family law landscape after separation or divorce. Our goal is to empower clients to make the best decision for themselves and their families by educating them about their rights, obligations, and options. By providing honest, practical legal advice, our firm helps preserve our clients’ rights and protect their interests while avoiding unnecessary and costly conflicts. Contact us online or call 1-888-799-8057 to schedule a confidential consultation about your family law or divorce matter.