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How to Get Spousal Support in 4 Easy Steps


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How to Get Spousal Support in 4 Easy Steps

What is Spousal Support?

Spousal support, sometimes called “alimony”, is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.[1]

Spousal support, unlike child support, is not an automatic right. When you and your partner separate, you could be entitled to spousal support, especially if your partner’s income is higher than yours and you could be left in a worst financial position than your partner after the separation.

The Purpose of Spousal Support

The purpose of spousal support is threefold[2]:

  1. To compensate a spouse who sacrifices his or her ability to earn income during the marriage;
  2. To compensate a spouse for the ongoing care of children, over and above any child support obligation; and
  3. To help a spouse in financial need arising from the breakdown of the marriage.

Who Can Get Spousal Support

Therefore, spousal support and the obligation to provide it will depend on various factors[3]:

  • how long you and your partner lived together
  • if you have children together and who has been caring for them
  • each partner’s income
  • each partner’s age
  • the roles each partner had during the marriage, for example if you stayed home to look after the children

The courts typically use the Spousal Support Advisory Guidelines (“SSAGs”) to decide how much spousal support should be paid and the duration of those payments. As these are just guidelines, courts can vary the suggested payments based on individual case circumstances.

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How to Get Spousal Support

Step 1: Spouse

To be eligible for spousal support, you need to meet the definition of spouse in connection with your ex-partner, which can occur in one of two ways, as defined by the Family Law Act:

  1. Married Spouse

According to section 1(1) of the Family Law Act, a “spouse” means a person who is married or entered a marriage.

  • Unmarried Spouse

An expanded definition of “spouse” is found in section 29 of the Family Law Act, which applies only with respect to the support obligations, and is defined as:

  1. a married couple, or
  2. two persons who are not married but:
  3. have cohabitated for a period of not less than three years; or
  4. have a relationship of some permanence, if they are the parents of a child.

Step 2: Proving Entitlement to Support

There are three ways to be entitled to spousal support, as alluded to above:

  1. Compensatory Spousal Support – for those who had responsibilities during the relationship, such as taking care of children or helping a partner build a career. As a result of those responsibilities, you have lost opportunities to make your own career.
  • Non-Compensatory Spousal Support or Needs-Based Support – The breakdown of your relationship leaves you in need of support and your partner has enough income and assets to pay support.
  • Contractual Spousal Support – if you and your partner have a cohabitation agreement, marriage contract or other form of contract that states that upon separation, you will be entitled to spousal support.

Step 3: Quantum of Support

The Spousal Support Advisory Guidelines (SSAGs) are guidelines which the courts use, that can help you and your partner decide how much spousal support should be paid and for how long. These are only guidelines, not laws. A judge can order more or less support than what the guidelines say. The SSAGs use 2 different formulas. One is for partners who have no children together. The other is for partners who have children together. The formulas calculate a range of low, middle, and high support amounts, as well as the length of time spousal support might be paid.

Practically, the amount of spousal support and how long it is paid for will depend on many factors including:

  • how long you and your partner lived together
  • if you have children together and who has been caring for them
  • each partner’s income
  • each partner’s age
  • the roles each partner had during the marriage
  • each partner’s mental and physical health
  • the ability of each partner to support themselves

Support amounts are usually higher, and paid longer, where:

  • there are big differences between the partners’ incomes,
  • they lived together for a long time, and
  • they had children.[4]

Step 4: Check the Guidelines for Exceptions

The Spousal Support Advisory Guidelines recognize categories of departures from the ranges under the formulas. The exceptions as set out by MySupportCalculator.ca, under the Spousal Support Advisory Guidelines are as follows[5]:

  1. Compelling Financial Circumstances in the Interim Period:
  • Where there are compelling financial circumstances at an interim stage (eg. one spouse may have to carry large and often unmovable expenses, most likely for housing or debts, in the short run; one spouse may have short term transitional needs at the interim stage).
  • Debt Payment:
  • Family debts exceed assets, the payor is carrying a disproportionate share of those debts and debt payments are excessive or unusually high.
  • Prior Support Obligations:
  • The payor (or recipient) has prior spousal or child support obligations (either through an agreement or as a custodial parent), requiring that spouse’s income to be adjusted prior to applying the formulas (“first family first” exception).

4. Illness and Disability:

  • The recipient’s illness or disability is not accommodated by the maximums in the ranges or by restructuring (eg. young recipient; short marriage; payor has low income). Best solution may be to lengthen duration beyond range, but maintain amount at lower end of range.

5. Compensatory Exception in Short Marriages Without Children:

  • The recipient has a large compensatory claim disproportionate to the length of the marriage, particularly in short to medium length marriages where there are no children (eg. recipient gives up or accepts lesser employment to accommodate payor’s employment transfer(s); recipient moves across country to marry payor and gives up employment/business; recipient works to put payor through post-secondary or professional program, but separates before enjoying payor’s enhanced earning capacity).

6. Property Division, Reapportionment of Property:

  • Because B.C.’s legislation empowers a court to reapportion property between spouses on grounds that overlap with spousal support considerations, spousal support (in B.C. only) may have to be reduced below the SSAG formula range where a sufficiently large reapportionment order has been made on support grounds. [Note: With B.C.’s new Family Law Act and division of property regime, this exception likely no longer applies.]
  • No other explicit exception for high property awards should generally be recognized given that property and support are governed by distinctive laws and serve different purposes. The SSAG can handle most high property awards through other avenues: imputing income; appropriately locating support amounts and duration within the ranges; individualizing support awards for incomes above the ceiling; in extreme cases, finding no entitlement to spousal support. However, the law in high property and high income cases is evolving and therefore may arguably qualify for exceptional treatment.

7. Basic Needs/Hardship: Without Child Support, Custodial Payor Formulas:

  • In short to medium marriages (eg. 1 – 10 years), where the recipient earns no or low income, and where the SSAG formula, even after restructuring, will not provide sufficient income for the recipient to meet his/her basic needs (particularly acute in big cities), spousal support may be awarded outside the SSAG ranges for a short, transitional period, provided the payor has the ability to pay.

8. Non-Taxable Payor Income:

  • Where payor has legitimate non-taxable income (ie. workers’ compensation, disability payments or income earned by an aboriginal person on reserve) and is unable to deduct spousal support, payor’s ability to pay may be affected. Tax positions of the spouses need to be balanced – payor’s reduced ability to pay versus needs or loss of recipient who still has to pay taxes on support.

9. Non-Primary Parent to Fulfill Parenting Role under the Custodial Payor Formula:

  • Where the recipient is an involved non-custodial parent from a shorter marriage with a young child (or children), he/she may need support in excess of the “Without Child Support” formula to fulfil his/her parental role (the “parenting exception”).

10. Special Needs of Child:

  • A child with special needs may affect the custodial parent’s ability to work, requiring spousal support beyond the amount and duration ranges of the SSAG

11. Section 15.3: Small Amounts, Inadequate Compensation under the With Child Support Formula:

  • Where priority is given to child support, resulting in spousal support (pursuant to an agreement or court order) in an amount less than the recipient would otherwise have been entitled to, spousal support may have to continue past the SSAG duration limit and possibly even increase in amount, as permitted in s. 15.3 of the Divorce Act. 

Nussbaum Family Law is a Toronto-based law firm that exclusively practices family and divorce law. For more information about how our Toronto divorce lawyers can help you contact Nussbaum Family Law to book a free consultation.

[1] https://familyllb.com/learn/ontario-spousal-support-101-key-issues-about-how-spousal-support-is-determined/

[2] https://www.justice.gc.ca/eng/fl-df/fact3-fiches3.html

[3] https://stepstojustice.ca/questions/family-law/can-i-get-spousal-support

[4] https://stepstojustice.ca/steps/family-law/3-calculate-amount-spousal-support

[5] https://www.mysupportcalculator.ca/learn/article/2461/ExceptionstotheSSAG

Did You Know

Most abusers’ behaviour stems from feelings of privilege and entitlement and learned attitudes.

These can be extremely challenging to change. They must be deeply committed to making lasting changes to their behaviour. 

Published On:December 20, 2020