Spousal Support Articles
Spousal support is not an automatic right associated with a breakdown of the marriage. In 1999, the Supreme Court listed the three grounds necessary to establish an entitlement to spousal support (Bracklow v. Bracklow):
- To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
- To fulfill a contractual agreement, expressed or implied, that the parties were responsible for each other’s support; or,
- On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.
If you and your former spouse or partner are unable to agree on spousal support and proceed to court, a judge will refer to the Spousal Support Advisory Guidelines as a starting point for amount and duration of support. Rather than generating a definitive number, the Guideline formulas provide support ranges for both the amount and duration based on the length of marriage and/or cohabitation period. For married spouses, the formula considers the entire cohabitation period, including any time the parties lived together before marriage.
Spousal support orders that are part of a court order, or an agreement incorporated into an order, can only be changed by way of a Motion to Change. Parties may apply to the court to vary (or change) a spousal support order under the Family Law Act, s. 37, or under the Divorce Act, s. 17.
Some factors that might change a support payor’s ability to pay, or the recipient’s need of support, include:
- An unforeseen change in financial circumstances for either party, including job loss or a significant increase or decrease in income;
- A disability or illness seriously affecting the payor or recipient;
- Remarriage by either party;
- Retirement of the payor.
A court order for spousal support can be enforced through the Family Responsibility Office (FRO), a division of the Ministry of Community and Social Services Ontario. Registration with FRO is the default regime for court orders that contemplate spousal and/or child support, which means that spousal support payments will be sent to FRO by the payor and will be subsequently distributed to the recipient by FRO. Parties that do not wish to have FRO manage their support payments may, on the consent of both parties, opt out and exchange support payments directly.
Even in matters where parties are able to negotiate spousal support amicably, a formal court order provides a measure of protection in that it may be enforced should a dispute arise in future. Additionally, separation agreements can be filed with the court, which makes them enforceable in the same manner as a court order; this results in a document that is both legally binding and recognizable by the court and the Family Responsibility Office.
Under the Divorce Act (s. 17(1)) and the Family Law Act (s. 37(2)), a court may make an order to vary, rescind or suspend an existing spousal support order either prospectively (creating future obligations) or retroactively, in light of an unfulfilled past obligation. While there is no formal obligation to pay spousal support without an order or agreement in place, a court may impose an obligation as far back as the date of separation should an entitlement to spousal support be established by the recipient.
Under the Spousal Support Advisory Guidelines, reaching the 20th year of marriage can create an indefinite support obligation upon parties ordered to pay spousal support. If a marriage is 20 years or longer, the Guidelines indicate that spousal support should not be subject to a specified duration – in other words, indefinite. The same result occurs under the Guidelines if the marriage has been five years or longer and the years of marriage plus the age of the recipient add up to 65 or more. This is the so-called Rule of 65.