We hear a lot about spousal support but what is it and how does it actually work?
Spousal support is a monetary amount paid by one ex-spouse to another, depending on income and living expenses. You can apply for spousal support regardless of whether you had children nor not.
Spousal support is set out in the Divorce Act, which is federal in nature and therefore affects all of Canada.
Usually spousal support happens in cases where one spouse earns more than another but it’s not always necessarily the case. Support payment determination is made on a case-by-case basis.
Though the Divorce Act and spousal support obligations are federal in nature, the individual provinces and territories rule family law. For instance, even though all legally married spouses qualify for spousal support, the provinces set out whether common law spouses are entitled to spousal support when they separate.
Though most people who are considered common-law under the respective provincial/territorial family law statutes qualify for spousal support, you should verify with the family law act of your province/territory if that is the case for your region. For example, currently in Quebec a common law couple that separated is not entitled to spousal support.
How does spousal support work?
The basis of spousal support is the idea of income sharing. The court will mainly look at the income of the spouses and then use a mathematical formula to figure out the amount of spousal support.
However, it should be noted that this sharing is not necessarily equal, because there are different ways of sharing income.
How is spousal support determined?
If you and your ex-spouse or ex-common-law partner cannot come to an agreement about spousal support, you will usually go to court for a determination.
The factors judges look at when determining spousal support are:
- The financial means and needs of both spouses;
- The length of the marriage;
- The roles of each spouse during their marriage;
- The effect of those roles and the breakdown of the marriage on both spouses' current financial positions;
- The care of the children;
- The goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and
- Any orders, agreements or arrangements already made about spousal support.
In addition to the above factors, the court also must determine whether the spousal support meets these criteria:
- To compensate the spouse with the lower income for sacrificing some power to earn income during the marriage;
- To compensate the spouse with the lower income for ongoing care of children; or
- To help a spouse who is in financial need if the other spouse has the ability to pay.
At the same time that the court looks at the above criteria, spouses who receive spousal support are also expected to make attempts to become more self-supporting, if possible.
When both spousal support and child support are asked for, the Divorce Act makes child support a priority.
Issues involving spousal support are quite complicated and a family lawyer should be consulted.
About Spousal Support Government of Canada
Spousal Support Advisory Guidelines