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Spousal Support

A married spouse or a divorced spouse may apply for spousal support under the Divorce Act. A spouse may apply for spousal support under the Family Law Act. Under this Act, for the purposes of support, “spouse” includes

  1. either of two persons who are married to each other or have entered into a marriage that is voidable or void in good faith;
  2. either of two persons who are not married and have cohabited continuously for a period of at least three years in a conjugal relationship; or
  3. either of two persons who are not married but who are in a relationship of some permanence if they are the natural or adoptive parents of a child.
  4. It is important to note, that unlike child support, spousal support is not mandatory. Prior to support being paid, parties need to determine whether either party is entitled to spousal support.

Spousal support can be ordered by a judge or it can be agreed upon by the parties and incorporated into a separation agreement. Our Toronto Family Law Lawyers will guide you through the difficult issues of entitlement, quantum and duration of spousal support.

What entitles spousal support?

The purpose of spousal support is to provide for the fair resolution of the economic consequences of spousal relationships. The length of the relationship, the parties’ financial circumstances, and the roles they fulfilled while together, particularly the raising of children, are all relevant factors. A party may be entitled to spousal support if the parties had a marriage contract or cohabitation agreement addressing spousal support. This is called contractual entitlement to spousal support.

A party may be entitled to spousal support if s/he is in need of spousal support to support her/himself upon the breakdown of the relationship. If a party was accustomed to sharing the family’s money and upon separation s/he can no longer access that money, s/he may be entitled to support on a needs basis. A party may also be entitled to support on a compensatory basis. This means the recipient should be compensated for the economic disadvantages s/he experiences as a result of the marriage or its breakdown, or because of the role that s/he took on during the relationship.

How much will spousal support be?

Once a party establishes entitlement to spousal support, the next questions are:

  1. how long will spousal support last; and
  2. how much will spousal support be?

The quantum and duration of spousal support will depend on a number of factors such as the age of the parties, the length of cohabitation, if there are dependent children, the roles that the parties took on throughout the relationship and the financial position, including the respective incomes, of the parties. The courts will consider the Spousal Support Advisory Guidelines (SSAGs) to guide them in the determination of the quantum and duration of spousal support.

Do I have to pay tax on spousal support?

Spousal support payments received in a particular calendar year are taxable to the recipient and deductible to the payor if they have the following features:

  1. the parties are separated;
  2. payments are being made on a periodic basis;
  3. payments are for the maintenance of the recipient;
  4. The payments are made directly to the recipient;
  5. The payments were made pursuant to an order or written agreement; and
  6. The agreement or order must refer to the amount as “spousal support” or “spousal support amount.