The law views marriage as a legal merging of assets, and if it breaks down, one spouse is often left with less than the other. While it is expected that adults in the process of divorce make all efforts to support themselves, it is often the case that the spouse with a higher income or more assets will be responsible for supporting the other spouse.
As you may know, child support amounts are clearly and concisely outlined in the Federal and Provincial Child Support Guidelines. The formula is simple and is calculated based on the paying parent’s income and the number of children. Payment of child support is automatic and non-negotiable.
Spousal support is a completely difference game. Unlike child support, payment of spousal support is not automatic, nor is the amount simply calculated. On the contrary, it is an extremely complex calculation that is difficult even for seasoned lawyers to predict. Several years ago, two University of Toronto professors created the Spousal Support Advisory Guidelines; a formula for calculating the quantum of spousal support to be paid. Considerations include the length of the marriage, how difficult it would be for the spouse to become self-sufficient, the difference in income between the spouses, and any perceived sacrifices the economically disadvantaged spouse may have made for the sake of the marriage. Ultimately, the Advisory Guidelines are just that: Guidelines. Whether or not spousal support will be ordered and the quantum of the support is at the discretion of the judge, taking into consideration all of the specific circumstances of the relationship.
Both common law and married spouses are entitled to make a claim for spousal support. Married spouses are entitled to support under the federal Divorce Act, and common law spouses under the provincial Family Law Act. Entitlement to spousal support applies to both opposite-sex and same-sex couples.
Family lawyers often use a specialized program called “DivorceMate” to produce a spousal support calculation pursuant to the Advisory Guidelines.
Spousal support FAQs
“Do I have to pay spousal support?”
If you earn more than your spouse, you may have to pay spousal support. The longer your marriage lasted and the bigger the difference between your income and your spouse’s income, the greater the chance that you’ll have to pay spousal support.
“How much spousal support do I have to pay?”
The amount of spousal support that needs to be paid is determined on an individual case basis. The court considers all of you and your spouse’s circumstances, including:
– Your assets and your spouse’s assets,
– Your income and your spouse income,
– Your age and your spouse’s age,
– Your health and your spouse’s health,
– The standard of living when you lived with your spouse,
– The ability of your spouse to become self-sufficient,
– The contribution your spouse has made to your career, and
– The economic hardship suffered by your spouse arising from the marriage.
“How long will I have to pay spousal support?”
Generally, courts don’t impose a time limit on spousal support unless your marriage was quite brief. However, you can apply to change your spousal support under certain circumstances.
“Is spousal support tax deductible?”
Yes. In Canada, you may deduct your spousal support payments from your income if you have a separation agreement or Court Order that requires you to pay spousal support. If you receive spousal support, you are required to pay tax on it.
“Can my spousal support payments be changed?”
Yes. Spousal support payments can be changed anytime there has been a drastic change in circumstances, such as remarriage by your spouse or a dramatic drop in your income.