The foundation for resolving family law disputes is the full and open sharing of the financial circumstances of each spouse or partner and of the children. This disclosure provides the factual basis from which the children’s expenses today and in the future can be accommodated. It entitles a spouse to negotiate an appropriate amount and duration of financial support.
Spousal Support Advisory Guidelines
The most recent version of the Spousal Support Advisory Guidelines (SSAG) in 2008 offered an efficient computational digest of the application of the many legislated factors relating to spousal support. The computation produces a suggested range of financial support payable over a period of time. Different variables can modify the range of the amount of support. The SSAGs do not apply to every family and where applicable the ranges are open to negotiation by clients.
A discussion on whether a spouse is required to spousal support to the other and for how long begins with the issue of entitlement.
Spouses who are married and those in common-law relationships of some permanence resembling marriage or with children, are entitled to assert a claim for support retroactively or ongoing. Whether the other spouse and their legal counsel agree with the assertion of such a claim will depend on many factors.
Financial support can also be claimed by a parent in financial need against their children before the parent turns to a social agency for assistance.
Spousal Support Factors
The essential factors to determine amount and duration of spousal support include:
- the length of cohabitation prior to the date of marriage, the duration of the marriage itself, and whether the parties married (all of which influence the length of time one spouse may have been financially dependent on the other)
- any economic advantage or disadvantage to a spouse arising from the relationship or its breakdown
- any children of the marriage or of the spouses’ cohabitation, and how the financial care for the children was apportioned between the parents
- a demonstrated need for ongoing spousal support and the other spouse’s ability to provide such support
- a difference in lifestyle during the marriage compared to after the breakdown of the relationship
- any illness or disability that prevents being able to live independently
- any need to retrain in a new field of employment or obtain skills upgrading, to enable a spouse to become self-supporting in a reasonable time frame
The types of spousal support may include:
- periodic, meaning the payments are recurring or ongoing, for example, monthly or annually. These payments will attract tax consequences to the recipient spouse and a tax deduction to the paying spouse.
- lump-sum payment, which has no tax consequences for either spouse
- retroactive spousal support for a recent period from the payor having received notice that spousal support is needed
Spousal support payments may go directly to the recipient spouse in the form of electronic direct deposit or other means. If there is a risk that the payor cannot be relied upon to pay the periodic support obligation, payment may be directed to the Family Responsibility Office, an agency of the Ontario government. In event of a default in payment, the FRO will initiate enforcement measures against the payor.
The duration of any spousal support obligation is another aspect to be considered and negotiated between the spouses once entitlement to receive the financial support has been agreed upon.
The support may be a temporary or short-term measure to stabilize the spouse’s financial situation until the spouse is able to upgrade educational requirements for a new career or establish a new business.
For example, a long-term traditional marriage where one spouse stayed home to care for and raise the children and manage the household. Being out of the workforce for a significant period of time meant a lack of means to establish a retirement fund or capital resources from which to become self-supporting once the children became financially independent. By contrast, the main income earner was able to put aside funds for investments, establish a retirement fund, or establish a professional partnership, securing a comfortable future.
In these often decades-long marriages, the stay-at-home spouse would be economically disadvantaged and certainly entitled to financial support from the financially independent spouse.