Spousal Support in Ontario: Determining Eligibility and Amounts

February 21, 2024
Gene C. Colman
Spousal Support

Navigating the complexities of spousal support can be a challenging aspect of separation or divorce. Spousal support in Canada may involve federal law and may involve Ontario provincial law. In Ontario, the laws surrounding spousal support are designed to ensure fairness and provide financial assistance where it’s due. (Caveat: Many support payors will not agree with that statement!) Understanding these principles is vital whether you’re seeking support or may be required to pay it.

In this blog post, I share with you some of my philosophical insights into the statutory and practical framework of Ontario spousal support. I hope that I succeed in giving you some practical pointers while at the same time sharing with you some of my views. Whether we are considering eligibility, amounts, duration or even the theoretical underpinnings of spousal support in Ontario, I hope that my insights will serve to enlighten and provoke considered thought. I aim here to dispel common myths and showcase the need for sound legal advice from experienced family law lawyers. For other blog posts that I have penned about spousal support, see the partial list at the very bottom of this post.

Eligibility for Spousal Support

The first step is to determine if you have a legal right to spousal support. Are you married? Are you ‘common law’? How permanent was the relationship? Let’s delve deeper –

Legally Married: If it’s a divorce case, then as long as you are legally married, you can claim spousal support under the federal Divorce Act.
Common Law: If you are not legally married (or legally married and do not wish to claim a divorce), the Ontario Family Law Act allows you to claim spousal support if:
1. it turns out that your marriage was void legally for some reason but you in good faith had entered into what you thought was a marriage relationship; or,
2. you have lived together continuously for a period of not less than three years; or,
3. you have lived together in a relationship of some permanence and you are both the parents of a child as defined in section 4 of the Ontario Children’s Law Reform Act (but that definition is for another day).

It follows that there has been plenty of litigation arguing about what these terms mean. It pays to secure knowledgeable legal advice.

Determining the Amount of Spousal Support

Unlike child support, the determination of spousal support payments isn’t a straightforward multiplication but instead relies on statute, case law, and a research paper that establishes the Spousal Support Advisory Guidelines. There is plenty of judicial discretion built in. Let’s briefly look at some of the overarching factors:

Need-Based vs. Compensatory Support

Understanding whether the support claim is need-based or compensatory is crucial. Need-based support aims to address the immediate financial needs of the lower-income spouse, while compensatory support seeks to recognize the economic sacrifices made by one spouse during the relationship. In my view it is very important to identify the nature of the spousal support when the first agreement or order is made. That’s because if you try to change the order later, a lot may turn on what the nature of the original support order actually was in the first place.

The Statutory Framework

The Family Law Act sets out the statutory purposes of a spousal support order in s. 33(8) and in s. 33(9) the Act goes on to list factors that are relevant to the amount and the duration of support. We reproduce those sections at the conclusion of this blog post. While the Divorce Act wording is somewhat different, practically speaking courts, lawyers, arbitrators, mediators and others tend to determine spousal support in the same manner no matter what Act applies to the situation.

Superimposed on the statutory scheme are the Spousal Support Advisory Guidelines. (“SSAG”). Don’t let the name “advisory” fool you. If you depart from the Guidelines, you better have good reason to do so. So says the case law. The SSAG try to mathematize the key factors that go into spousal support calculations. They provide a ‘rough’ sort of justice giving the participants a range with respect to both amount and duration. In practice, they seem to have taken away a lot of the discretion. One ignores the SSAG only at his/her extreme peril.

Common Misconceptions about Spousal Support

Myths about spousal support can often mislead individuals as they attempt to navigate their separation. It’s a widespread fallacy, for example, that cohabiting couples won’t face the same responsibilities as legally married couples. The truth is Ontario law provides similar protections for both.

Moreover, the notion that spousal support is a punitive measure or affects only one gender is misleading. Legal counsel can help clarify these aspects, ensuring that decisions are made based on facts, not on misconceptions, myths and stereotypes. Still the old prejudices die hard. I wish that I could be more optimistic.

Enforcing and Modifying (Varying) Spousal Support Orders

Enforced compliance with spousal support orders (just as with child support orders) can be obtained through the Family Responsibility Office (FRO). However, should there be significant changes in circumstances, such as a substantial shift in either party’s income, modification (variation) of the support order might be necessary. Note that the FRO has no jurisdiction at all to change the order or agreement. Orders must be changed by courts. Agreements must be changed via the process stipulated in the agreement.

Conclusions

Spousal support seems to be premised upon the assumption that marriage (legal or common law) is based upon a partnership and when that partnership dissolves, the better off partner is obliged to financially care for the other partner. That ‘care’ could be for a year or two; it could be for a lifetime. It all depends.

While self-reliance or financial independence is a recognized legal principle here (eg. See Family Law Act, s. 30), there are many factors that will impact the determination of entitlement, duration and amount.

If you’re navigating the path of spousal support, whether with respect to entitlement, amount or duration, it’s wise to consult with a knowledgeable family law lawyer in Ontario. It’s just a smart investment.

We welcome your inquiries. Gene C. Colman provides in depth consultations on spousal support and other issues. To get started, you may start with telling us a bit about your case at our secure online form.

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Statute References

FAMILY LAW ACT excerpts

Purposes of order for support of spouse

33 (8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

Determination of amount for support of spouses, parents

33 (9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).