Spousal Support

Like child support, spousal support (sometimes referred to as alimony) is governed both by the Federal Divorce Act (RSC 1985, c 3 (2nd Supp)) and Ontario’s Family Law Act (RSO 1990, c F-3). Generally, the Divorce Act will apply to married couples that are divorcing or modifying a court order from a previous divorce. The Family Law Act applies to parties that are unmarried or, sometimes, to separated married couples who do not wish to divorce. However, both statutes provide similar rules for when, how much, and for how long a person is entitled to spousal support.

When is a former spouse entitled to spousal support?

Unlike child support, there is no automatic entitlement to spousal support. A judge can award spousal support to a former partner for the following purposes:

  1. To recognize a spouse’s contributions to a relationship;
  2. To share the financial costs of caring for a child;
  3. To alleviate financial hardship;
  4. To help a spouse be able to contribute to his or her own support; or
  5. To rectify any economic advantage or disadvantage to a spouse caused by a relationship or its breakdown.

How is income determined for spousal support purposes?

A support payor’s income is generally determined via their most recent income tax returns and pay stubs. However, in rare cases, the court may find a reason to determine that person’s income is different from these documents. Common reasons a judge may deviate from a parent’s income as determined by income tax returns and pay stubs are:

  1. A support payor is self-employed;
    It is common in these cases to see personal expenses being written off as business expenses or dealing in cash that is not declared as income. Therefore, careful consideration of the payor’s finances must be taken into account when determining what their income for child support purposes is. In many cases, the support payor’s income will be declared as higher than what appears on their income tax return.
  2. A support payor quits a high-paying career, either to take a much lower-paying job or to be unemployed.
    If the judge determines that the support payor is deliberately underemployed, they may determine their income for support paying purposes is at the level of their previous job, or at the very least higher than what is on their income tax return and current pay stubs.

How is the amount and duration of spousal support determined?

Judges use the Spousal Support Advisory Guidelines (SSAGs) to help determine the amount and duration of spousal support payments. However, unlike the Child Support Guidelines, a judge is not required to strictly adhere to the amounts in the SSAGs. Furthermore, the guidelines provide a range of acceptable spousal support outcomes that a judge may award based on a variety of situational factors. Therefore, it is hard to predict the exact amount of spousal support a judge may award.

The amount of spousal support awarded also depends on whether or not there is currently child support being paid. The SSAGs provide two formulas depending on whether or not child support is being received. Furthermore, each of these formulas provides a low and high range of spousal support that the court could award. A table of factors that support awarding higher versus lower SSAG amounts is provided below:

Factors Favouring High SSAG Range
Factors Favouring Low SSAG Range
  • Long length of marriage/cohabitation
  • Compelling needs
    Example: person receiving spousal support has a severe illness or disability.
  • Strong compensatory claim
    Example: person receiving spousal support gave up opportunities they had to help further the career of the person paying spousal support.
  • Local and regional discrepancies
    Example: the parties may be living and want to continue living, in an area that has a high cost of living.
  • Age of parties
  • The need of the receiver to attend retraining or an education program.
  • The presence of young children (even with a short term marriage).
  • Short marriage/cohabitation
  • Weak Compensatory Claim
  • The person receiving spousal support does not have significant needs.
    Example: the support recipient is living in a mortgage free home.
  • The person paying spousal support has a limited income.
  • The person receiving support is not living with and receiving support from a new partner.

Note: The court will also likely deviate from these guidelines for individuals with extremely high (over $350,000) or low (under $20,000) gross annual income.

Further Note: The following section contains a number of calculations that many people find hard to understand. For an easy method of calculating how spousal support might apply in your situation, visit: My Support Calculator.

Calculating spousal support when no child support is not being received

Spousal Support Amount

  1. Calculate the difference between the gross annual incomes of the two parties.
  2. Basic annual amount calculated:
    1. For marriages and cohabitations less than 25 years: 1.5% to 2.0% of the difference for each year of cohabitation up to a maximum of 50%.
    2. For couples who have cohabited for longer than 25 years: 37.5% to 50% of the income difference.
  3. The annual amount is divided by 12 to determine a monthly payment.

Spousal Support Duration

  1. Typical duration = Between 0.5 and 1 year for each year of marriage.
  2. If a marriage or cohabitation lasted 20 years or longer, support duration is more likely to be indefinite.
  3. If the marriage has lasted for longer than 5 years, and when the marriage duration and age of the support recipient added together equal 65 or more, support duration is more likely to be indefinite.

Sample Calculation: John and Jane Doe (Calculated March 2016)

Facts
Spousal Support Amount
Spousal Support Duration
Cohab Length:
7 years

Annual Incomes
John Doe: $80,000
Jane Doe: $45,000

Income Difference
=John – Jane
=$35,000

Payment Calculation
\frac{(years)x(percentage)x(difference)}{12months}

Low Range
\frac{(7)x(1.5%)x(35,000)}{12months} = $306.25

High Range
\frac{(7)x(2.0%)x(35,000)}{12months} = $408.33

Duration Calculation
years cohabit x years support

Low Range
7 years x 0.5 year = 3.5 years

High Range
7 years x 1 year = 7 years

Calculating spousal support when child support is being received

Note: The basic formula below only applies where one spouse is the primary caregiver of the children. The SSAGs also have a number of other formulas that contemplate situations such as: parents having split or shared custody, step parents, when the custodial parent is the one paying spousal support, or if a couple has adult children still receiving some form of support. For more information on these situations, and to see a sample calculation, visit: My Support Calculator.

Spousal Support Amount

  1. Determine the Net Disposable Income (NDI) of each spouse:
    1. Payers NDI: Gross Annual Income – Deductions (Income Tax, EI Premiums, CPP Payments, and any deduction that benefits spouse or children, ie: Child Support)
    2. Recipients NDI: Gross Annual Income – Deductions (Income Tax, EI Premiums, CPP Payments)
  2. Add together the NDIs. Determine the range of spousal support payments that would allow the lower income spouse to have between 40% and 46% of the combined NDI.

Spousal Support Duration
In this case, there are two possible ways a judge may determine duration:

  1. Age of Children Test: Typically applied to marriages or cohabitations of less than 10 years. The lower end of this range is a spousal support ends when the youngest child starts attending full time school. The upper end of this range is until the youngest child finishes high school.
  2. Length of Marriage Test: Typically applied to marriages or cohabitations of more than 10 years. In this case, the same guidelines as spousal support without children apply, namely:
    1. Between 0.5 and 1 year for each year of marriage.
    2. If a marriage or cohabitation lasted 20 years or longer, support duration is more likely to be indefinite.
    3. If the marriage has lasted for longer than 5 years, and when the marriage duration and age of the support recipient added together equal 65 or more, support duration is more likely to be indefinite.

Sample Calculation: John and Jane Doe from My Support Calculator (Calculated March 2016)

Facts
Spousal Support Amount
Spousal Support Duration
Cohab Length:
7 years

Annual Incomes
John Doe: $80,000
Jane Doe: $45,000

Child
One 5-year-old child

Child Support
$724.00/month

Low Range Spousal Support
$0.00/month

Mid Range Spousal Support
$181.00/month

High Range Spousal Support
$501.00/month

Low Range
Length of Marriage Test
7 years x 0.5 year = 3.5 years

High Range
Age of Children Test
18 years – 5 years = 13 years

Can a spousal support order be changed?

Because spousal support is flexible and based on a wide variety of factors, former spouses will often apply to the court of a change in a previous spousal support order if there has been a material change in circumstances. One of three major reasons can support variation:

  1. A payor’s income goes down
    Example: A payor loses his or her job, or ends up with an illness or disability that limits his or her ability to work full time.
    Important Note: A payor who quits a high-income position to take a much lower-paying position or to become unemployed will most likely be unable to make a claim for a change in spousal support.
  2. A recipient’s income goes up, or a recipient ends up in a situation with greater economic means
    Example: A recipient becomes employed at a job with a higher salary than before or moves in with a new partner who contributes to family expenses.
  3. Payor spouse applies to reduce or terminate support on the grounds that the recipient spouse ought to have higher income.
    Example: A recipient spouse completes a college diploma. There are many jobs available for people with that particular education where he or she is living. Dispute this, he or she does not appear to be seeking employment and is unemployed for a long period of time.

Are spousal support payments tax deductible?

Unlike child support, periodic spousal support payments are tax deductible by the payor and are considered part of the recipient’s taxable income.

Disclaimer: This blog is made available by Jackson Law Professional Corporation for educational purposes only. Its purpose is to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog, you understand there is no lawyer-client relationship between you and Jackson Law Professional Corporation or any of its employees or representatives. This blog should not be used as a substitute for competent legal advice from a licenced lawyer in your jurisdiction.