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Understanding Spousal Support in Canada: What You Need to Know


A drawing of a woman sitting at her laptop working on her finances

Lately, I've had several consultation calls with prospective clients whose lawyers have advised them to either demand spousal support from their ex or to pay it to them. However, unlike child support, spousal support is not governed by non-negotiable laws or fixed amounts.


Spousal support can often lead to disagreements, escalating conflicts between clients and resulting in higher legal expenses. Negotiations should acknowledge the guidelines, but the final outcome remains uncertain until both parties reach an agreement. This process doesn't have to be confrontational, and there are usually alternative methods for reaching settlements that are mutually beneficial and may not even need to include spousal support.


Family Law aims to achieve financial independence for both parties after a divorce. This means that the Spousal Support Guidelines have been put in place to help you find the quickest way to become financially independent. However, there are also other ways to negotiate settlements that can assist a spouse in need without relying solely on spousal support. In this article, I will discuss these guidelines, as well as some alternative options to consider, while also highlighting the potential downsides of relying solely on spousal support.


In essence, Family Law wants people to become financially independent of each other after divorce and, in theory, wants you to find the quickest path to this. In this article, I will share with you the Spousal Support Guidelines and some ideas about other ways that settlements can be negotiated, where a spouse in need can still be helped, but in different ways, because there are some downsides to receiving spousal support.


Spousal Support Advisory Guidelines (SSAG)


The Spousal Support Advisory Guidelines (SSAGs) provide direction in determining spousal support amounts. They should be used as a framework rather than a strict formula. These guidelines were created to deliver consistency and predictability regarding spousal support awards during a divorce, as the process can be quite challenging and emotionally tumultuous for all parties involved.


It is essential to understand that the SSAGs are not laws but guidelines widely used and respected by judges and lawyers. These guidelines are extremely useful in spousal support matters and emphasize the need for a standardized approach.


Over the past decade, the Spousal Support Advisory Guidelines (SSAGs) have proven to be an invaluable resource for dealing with complex spousal support cases. They provide a reference point for understanding the potential range of support. The Revised User's Guide to the SSAGs has further improved this tool by addressing common errors and emerging issues, thereby refining the application of these guidelines in real-world scenarios.


Although the SSAGs offer structured assistance, calculating spousal support can still be complex and overwhelming. While the SSAGs are helpful, every case is unique and may require professional legal consultation. In complicated cases, it is highly recommended to seek the expertise of a seasoned mediator or lawyer. They can assist in navigating the intricacies of the SSAGs and ensure a fair and equitable outcome. Also, using a tool such a My Support Calculator can be handy.


Retroactive Spousal Support


Divorce settlements can be difficult, especially regarding retroactive spousal support. This element is often misunderstood, but it's crucial to realize that retroactive support is not meant to punish the person who has to pay it. Instead, it's about fairness and addresses the financial obligations not met before a court order or separation agreement was put in place.


The scope of retroactive spousal support usually covers the period from when the recipient was notified of the claim. However, this period is not indefinite. Courts generally limit retroactive claims to the previous three years. This limitation is put in place to balance fairness with practicality, recognizing that financial circumstances may change and records may not always be available.


When courts consider retroactive spousal support, they delve into various factors:


  • Delay Reasons: Why was there a delay in seeking support?

  • Payor's Conduct: Was the payor aware of the obligation, and did they attempt to evade it?

  • Potential Hardship: Would enforcing retroactive support cause undue hardship to the payor?

  • Recipient's Circumstances: What were the financial needs and situation of the recipient during the period in question?


Calculating retroactive support using the SSAGs can be complex, especially when factoring in tax implications. The payor's conduct, particularly if it's blameworthy, can significantly influence the outcome of these claims.


Common Law and Spousal Support


When providing financial support to a partner, the definition of a 'spouse' is not limited to those legally married. It also includes cohabiting partners and former spouses. The law acknowledges that relationships can take on different forms and that support may be needed outside traditional marriage boundaries.


It is a common misunderstanding that one spouse must provide financial support to the other immediately after a separation. However, without a legal order or agreement, there is no automatic requirement for support payments. Nonetheless, if one partner is accustomed to a certain standard of living or has made sacrifices for the family's benefit, the courts may intervene to ensure fairness and prevent undue hardship.


7 Factors for Understanding Spousal Support in Canada

The following seven categories are the prime areas of consideration according to the SSAGs and are essential to understanding spousal support in Canada. If you fall into one of these categories, you may qualify for spousal support.


1.Compensatory Claims: If one spouse did not work for reasons such as raising the children or contributing in other non-monetary ways and has yet to have the opportunity to establish themselves as a viable wage-earner in the workforce, they may need some help getting established after the divorce.


2. Non-Compensatory Claims: These claims are based on the recipient’s living situation after the divorce. The four areas considered are:


  •  Caregiving children younger than school-age

  •  Permanent or short-term disability

  •  In need of Post-secondary education to work a higher-paying job.

  •  Being of an age where entering the workforce and obtaining gainful employment is highly unlikely (people approximately aged 55+)


3. Long-term Marriage: If the marriage lasted 20 years or more, the spouse who demonstrates a need for spousal support may be entitled to it for an extended period of time or based on reviewing their need at regular intervals.


4. Demonstration of Need: The person wishing to receive spousal support must demonstrate their need. This can be done through using a budget worksheet or demonstrating excessive start-up costs for living without the income of the former spouse. 


5. Ability to Pay: The spousal support payor must be able to pay the spousal support without incurring financial hardship. Critical financial considerations are:

  • Monthly amount of child support being paid

  • Section 7 Special and Extraordinary Expenses for children

  • Net Income (Use budget worksheets for this)

  • Additional ongoing support for ex-spouse such as providing health insurance, paying their phone bill, etc.


6. Duration: Will spousal support be a lump-sum payment, a monthly payment over time, or another arrangement? If an ex-spouse receives regular payments, the Spousal Support section of the Separation Agreement should include plans for an exit strategy.


7. Income Tax Considerations: The person receiving Spousal Support must claim the yearly amount as income. Consider the tax implications of this and if it is worth it. Is there another way that compensation could be given to avoid this, such as adding a lump sum to a buyout of the home or the equity payout after the house sells?


Note also that the payor may deduct Spousal Support payments from their income to lower their income tax bracket.


Potential Downsides to Receiving Ongoing Spousal Support


Receiving ongoing spousal support in Ontario offers financial stability but has significant potential downsides. One major issue is the tax implications, as spousal support payments are taxable income for the recipient. This can lead to a higher tax burden, reducing the net benefit of the support received. Additionally, relying on spousal support may discourage the recipient from striving for financial independence or pursuing career advancement, creating a long-term dependency that can be difficult to break.


Another downside is the inherent uncertainty of ongoing support. These payments can be modified or terminated if the payer's financial situation changes, such as job loss or retirement. This unpredictability can cause significant financial instability for the recipient, who may find it challenging to plan for the future with confidence. Moreover, continued financial ties to an ex-spouse can hinder emotional closure, prolonging the stress and conflict associated with the divorce, which can affect both parties' mental well-being.


Legal considerations also play a crucial role in the potential downsides of receiving ongoing spousal support. Changes in circumstances, such as the recipient’s remarriage or significant changes in income, may lead to legal challenges or adjustments to the support arrangement. These situations often require further legal intervention, which can be both time-consuming and costly. The need for periodic reviews and potential court appearances to address changes can add an extra layer of complexity and stress to the recipient's life, making the support arrangement more burdensome over time.


Conclusion


As we come to the end of our discussion on spousal support, it's clear that understanding this topic requires knowing the law well and being sensitive to the personal stories involved. Figuring out who is entitled to support, following the Spousal Support Advisory Guidelines, dealing with retroactive claims, understanding the downsides of ongoing support and considering how common law affects spousal support are all complex issues. They show the wide range of situations facing different people. Each case must consider legal principles, personal circumstances, and the overall aim of being fair and just.


While the legal framework offers a structured approach to resolving spousal support matters, it's crucial to remember the real lives, relationships, and stories behind each case. Pursuing justice in these cases is a journey toward resolution, healing, and new beginnings, emphasizing empathy and fairness for all involved. Always prioritize achieving a fair resolution while considering the human element.


Thank you for reading, and may your journey in determining spousal support be guided by empathy, cooperation, and an unwavering commitment to a better future for everyone involved.


Schedule a Consultation Need help with a legal separation agreement? As an experienced professional, I can provide you with the support, insight, and expertise you need to create an agreement that stands the test of time.


Don't navigate this journey alone. Contact Michelle today to schedule a consultation and take the first step towards a future defined by clarity, fairness, and mutual respect.




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