Spousal Support in Ontario, Explained

• by David Frenkel

Spousal Support in Ontario, Explained

When couples are together for a number of years, or even decades, after children have long since moved out of a family home, it is not uncommon for spouses to seek a divorce and separate. Like with any partnership, sacrifice is necessary for the continued and productive duration of a relationship. In many cases, one spouse is the “bread-winner” while the other forgoes a career to stay home to raise the children. When these spouses separate, or are in the process of separating, the financial dependency at times creates financial inequity and difficulty. To combat financial disparities between separating partners, spousal support may be the dependent partner’s only source of relief.

  1. What is Spousal Support? What is the Purpose of Spousal Support?

    Spousal support is money paid, typically by a higher-earning spouse to the other for financial support. Spousal support is also commonly referred to as “alimony” and is typically paid out on a monthly basis. As the former Chief Justice McLachlin of the Supreme Court of Canada said, “the primary purpose of [spousal support] payments, under the basic social obligation model, is to replace lost income that the spouse used to enjoy as a partner to the marriage union”. 1 In other words, as spouses live together on joint income, they grow accustomed to a particular lifestyle. As one may become dependent on the other to maintain a particular lifestyle, it is the supporting spouse’s duty to provide for the dependent spouse after separation. In essence, spousal support offers a dependent spouse an opportunity to minimize any unfair economic impact a divorce has on their life.

  2. Spousal Support in Legislation: Divorce Act versus the Family Law Act.

    Applying for spousal support can be tricky as there are specific circumstances that may dictate whether you should apply under the Divorce Act as opposed to the Family Law Act. Generally, if you are married or have been divorced, you may apply for spousal support under the Divorce Act. Also, if you are married, you may apply under the Family Law Act (the “FLA”) If you have been divorced and you choose to apply for spousal support, it must be done under the Divorce Act. Further, if a spousal support application was filed under the FLA and an order was granted, but the other spouse applies under the Divorce Act, the order under the FLA will remain active until a time an order is made under the Divorce Act. However, if an order was not granted on an application made under the FLA and subsequently the other spouse begins an application under the Divorce Act, this action will result in the FLA proceeding being stayed (terminated), and the application under the Divorce Act will continue.

  3. Am I entitled to Spousal Support? How is Spousal Support Calculated?

    Whether an ex-spouse or common-law partner is entitled to spousal support typically depends on the same set of factors including: each partners’ respective ability to earn income, the duration of their relationship, their ages, the roles each took during their relationship, among other things. Although each case is unique to individual circumstances, a determination of whether spousal support will be paid usually depends on three main concepts: (1) whether parties have contracted out of spousal support, or agreeing, in the event of a divorce a method of calculating it, (2) whether one party needs to be compensated on the basis of an economic disadvantage, or (3) whether spousal support is needed with consideration to the spouse’s needs, means, and circumstances.

    Although not federally legislated, the Federal Department of Justice has introduced the Spousal Support Advisory Guidelines (the “Guidelines”) which assists courts in computing reasonable and appropriate spousal support amounts. In fact, the Ontario Court of Appeal has approved the use of the Guidelines as it provides guidance for determining spousal support based on existing case law in order to make the amount calculated more objective. 2

    The Guidelines offers three methods for computing spousal support depending on whether there is no child, whether there is a child, or whether there is a custodial parent. Under the first method, if there are no children or any child of the marriage is no longer dependent, the amount should be approximately between 1.5% and 2% of the parents’ gross incomes for each year of marriage (including years of cohabitation pre-marriage) to a maximum of 50% of the payor’s income. Under the second method, where children are in the picture, it is recommended to calculate the Individual Net Disposable Income (the “INDI”) for both ex-spouses. The INDI for the paying-parent is calculated using the Federal Child Support Guidelines amount and subtracting any child support payable, taxes, and deductions. The INDI for the recipient-parent is calculated using the Federal Child Support Guidelines amount and subtracting the nominal child support, taxes, and deductions, but adding any government benefits and credits received. The two INDIs are then added, and the recipient-parents will receive anywhere between 40% to 46% of both INDIs added together.

    If there is a custodial parent separating from their spouse, the Guidelines suggests that their spousal support should be calculated by the following formula. The paying-parent’s income is adjusted using the Table amount using the Federal Child Support Guidelines in addition an amount allocated for section 7 expenses. Then, if the recipient-parent is paying child support, the paying-parent’s income is reduced by the child support paid according to the Table amount.

As inequity is a major concern for spouses who are divorced or seeking a divorce, spousal support is commonly applied for. It is important to understand what situation you are in to understand which path to take when filing a claim, whether it is under the Divorce Act or the FLA. If you are considering divorce and are concerned about your financial well-being, it is essential to ensure that you understand your rights and obligations as a former spouse and determine whether you are entitled to spousal support.

  1. Bracklow v Bracklow, [1999] 1 SCR 420 at para 23.
  2. Fisher v Fisher, 2008 ONCA 11.