Spousal support, also called maintenance, is a payment from one spouse to the other to assist with living expenses. Both married and unmarried spouses, as well as spouses of the same gender, may claim spousal support. Unmarried spouses must meet the definition of “spouse” under the Family Law Act, which includes persons who lived together in a marriage-like relationship for at least two years or had a child together.
Married couples can claim support under the provincial Family Law Act or the federal Divorce Act.
Under the federal Divorce Act, there is no limitation period for bringing a spousal support application. However, if you wait several years, the court might dismiss your claim or expect you to provide a reasonable explanation for the delay. A claim under the provincial Family Law Act for spousal support may be brought during the marriage or within two years after the parties divorced.
Unmarried couples are limited to claiming spousal support under the Family Law Act. An unmarried spouse may claim spousal support if he or she lived in a “marriage like” relationship for at least two years with the spouse, or they had a child together. The claim must be made within two years from the date when the couple stopped living together.
Principles of Spousal Support
The aim of spousal support is to assist the recipient spouse to become self-sufficient within a reasonable time. Spousal support is not paid as a right, and the payment and amount of spousal support will depend on the particular circumstances. When making an order for spousal support, the courts will not consider any misconduct on the part of either spouse.
When deciding the issue of spousal support, the courts consider the “condition, means, needs, and other circumstances” of each spouse, which may include the following:
- length of the marriage/cohabitation;
- functions performed by each spouse;
- other agreements or arrangements for spousal support;
- economic circumstances, including economic disadvantages arising from the marriage or marriage breakdown;
- any other sources of support; and
- the ability and capacity of a spouse to be self sufficient.
The duration and amount of support will depend on the circumstances. Spousal support may be ordered for a limited time or indefinitely. Ultimately each case will turn on its own facts.
Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines (“SSAG”) do not have the force of law but are regularly used by courts to provide a range for the quantum and duration of spousal support. The aim of the SSAG is to bring more certainty and predictability to the range of spousal support.
Note that the SSAG does not determine entitlement to spousal support, only the possible payments after entitlement to spousal support is found.
The SSAG propose two basic formulae, one where there is no child support being paid and one where child support is being paid.
Variation of Spousal Support
Where spouses have already made a written agreement as to how much spousal support is payable, the courts typically try to uphold the agreement where it was entered freely and with appropriate legal advice. The Supreme Court of Canada has held, with limited exceptions, that parties should be bound to their agreements.
Where a party seeks to vary a spousal support order or an agreement, that party must show that there has been a change in circumstances. The threshold for change in circumstances is whether there has been an unforeseen change in needs, means, and the economic circumstances since the original order was made.
Taxation of Spousal Support
Periodic payments of spousal support are tax deductible to the payor and are taxable income to the recipient. Lump-sum spousal support payments are neither deductible nor taxable.