Frequently Asked Questions - SPOUSAL SUPPORT

Disclaimer:

Please note that this is not a legal text and will not give you legal advice. These "Frequently Asked Questions" (FAQs) will give you general legal information. To get legal advice regarding a family law issue, you would have to speak with a lawyer who practices family law.

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Spousal Support

1. What is "spousal support?"
   
   
2. Who is entitled to spousal support?
   
   
3. Do I have to pay both child support and spousal support at the same time?
   
   
4. How is spousal support calculated?
   
   
5. Are there guidelines for calculating how much spousal support must be paid?
   
   
6. Can I use the Spousal Support Advisory Guidelines myself to calculate spousal support?
   
   
7. Do the Spousal Support Advisory Guidelines apply to support cases that are determined under provincial/territorial jurisdiction?
   
   
8. Can previously determined spousal support be renegotiated now using the Spousal Support Advisory Guidelines?
   
   
9. Why is the federal government not legislating Spousal Support Advisory Guidelines in the same way that it did the Federal Child Support Guidelines?
   
   
10. For how long must spousal support be paid?
    
    
11. Can I stop paying spousal support if my former spouse gets a job or a salary increase or remarries?
    
    
12. Does paying or receiving spousal support affect how much income tax I must pay?

1. What is "spousal support?"

"Spousal support" is money that one spouse (usually the one with the higher income) may have to pay to the other spouse (usually the one with the lower income) following a separation or divorce. It is sometimes called "alimony" or "maintenance. "

2. Who is entitled to spousal support?

All married spouses who divorce are entitled to be considered for spousal support under the federal Divorce Act. In most provinces and territories, common-law spouses may also be able to get spousal support after a certain period of time of living together. It is important to check the requirements of the province in which the issue is being determined.

Under the Divorce Act, to determine whether a spouse is entitled to spousal support, a judge decides if the support would meet either one or both of the following purposes:

• to compensate the lower-earning spouse for sacrifices in earning power made during the relationship; and/or
• to help a spouse who is in financial need if the other spouse has the ability to pay.

If spousal support would not serve either of these purposes, it is unlikely that a judge would find that the spouse is entitled to this type of support.

Spousal support is often paid when there is a big difference between the spouses' incomes after separation, but not always. A court may decide that the spouse with the lower income is not entitled to support if he or she has substantial assets or because the difference in income cannot be traced to anything which happened during the relationship.

3. Do I have to pay both child support and spousal support at the same time?

Many people pay both child and spousal support at the same time. In cases where there is not enough money to do both, the law provides that priority should be given to child support.

4. How is spousal support calculated?

Once it has been decided that a spouse is entitled to spousal support, a court will determine the amount and length of time the support will be paid , taking into account a list of factors including:

• The financial means, needs and circumstances of both spouses
• The length of the marriage
• The roles of each spouse during their marriage
• The financial consequences of those roles
• The ongoing care of the children
• The goal of seeking self-sufficiency to the extent possible
• Any order, agreement or arrangement already made about spousal support.

5. Are there guidelines for calculating how much spousal support must be paid?

The Department of Justice Canada funded the development of Spousal Support Advisory Guidelines to provide a tool to help family law professionals advise their clients about the appropriate amount and duration of spousal support. These informal, voluntary Advisory Guidelines work within the existing legislative framework of the Divorce Act but, unlike the Federal Child Support Guidelines, the Advisory Guidelines are not passed into law. They have been found to be especially helpful for negotiating out-of-court settlements. It should be noted that many courts across Canada have based their decisions about spousal support on the Advisory Guidelines.

6. Can I use the Spousal Support Advisory Guidelines myself to calculate spousal support?

It is recommended that individuals consult a legal professional to determine spousal support. These Advisory Guidelines are very technical as spousal support is one of the most complex areas of family law. They were designed for family law professionals with a good understanding of spousal support laws and with the special software needed for some of the calculations. The software, which is produced by the private sector for the legal community, is not generally available to the public.

7. Do the Spousal Support Advisory Guidelines apply to support cases that are determined under provincial/territorial jurisdiction?

The Spousal Support Advisory Guidelines were developed under the federal Divorce Act and intended primarily for use under this legislation. Each province and territory has its own support legislation, which applies to couples who were never married to each other, and to married couples who separate but do not divorce.

There is a considerable amount of overlap between the federal, provincial and territorial spousal support laws and, in most cases, the Advisory Guidelines provide enough flexibility to deal with the differences. Still, it is important to note that provincial and territorial laws have some distinctive features that need to be taken into account when using the Advisory Guidelines. These vary from one jurisdiction to another. For example, most have specific provisions determining entitlement to spousal support in non-marital relationships. Some make explicit references to conduct, property and other factors that could have an impact on the amount and duration of spousal support. This is something that can be discussed with your lawyer.

8. Can previously determined spousal support be renegotiated now using the Spousal Support Advisory Guidelines?

The Spousal Support Advisory Guidelines cannot be used to override existing agreements and orders for spousal support. Under the Divorce Act, a court may vary a spousal support order only if one or both spouses can prove al material change of circumstances. Written agreements may have their own clauses stating the circumstances under which they can be varied.

9. Why is the federal government not legislating Spousal Support Advisory Guidelines in the same way that it did the Federal Child Support Guidelines?

Federal Child Support Guidelines are based on the principle that each parent should support their children in accordance with their ability to pay. As a result, child support lends itself to a single formulaic approach and precise support amounts, easily transferable to regulation.

Unlike child support, there is no assumption that spousal support must be paid. Determining entitlement is not as much of an issue with child support. In addition, the Spousal Support Advisory Guidelines need to be flexible enough to respond to the multiple objectives of spousal support and to the diversity of marriages. They cannot easily be transferred to regulation because of their length and complexity. . By being advisory only, the Spousal Support Advisory Guidelines seek to balance the need for greater guidance for family law professionals with the need to give the family law community (including judges) discretion in seeking fair resolutions to a complex issue.

10. For how long must spousal support be paid?

No time limit is set out in the Divorce Act. One objective of spousal support is to encourage receiving spouses to become as financially independent as they can. In some cases, however, a spouse cannot become financially independent. Each situation is different and must be decided based on its merits. In some cases, spousal support is ordered only for a limited amount of time. In other cases, spousal support must be paid indefinitely.

11. Can I stop paying spousal support if my former spouse gets a job or a salary increase or remarries?

If you are paying spousal support that is set out in a written agreement or in a court order, you must continue to pay unless:

• The order is changed by a court; or
• You and your former spouse change your agreement; or
• The conditions for stopping payment, as set out in the order or agreement, have been met.

A court may change a spousal support order if it is satisfied that there has been a significant change in the condition, means, needs or circumstances of at least one of the former spouses since the last order was made.

12. Does paying or receiving spousal support affect how much income tax I must pay?

Yes:

• If you receive spousal support, you must declare it as income and pay taxes on it.
• If you pay spousal support regularly and you have a written agreement or a court order telling you to pay support, you can deduct it from your taxable income.

For more information, contact Canada Revenue Agency or refer to their Website