About Spousal Support

When a married couple separates or divorces, the spouse with the higher income sometimes pays money to the spouse with the lower income to balance the financial impact of the divorce so that the outcome is fair. This money is called "spousal support".

In some provinces, support may also sometimes be required when common–law couples separate, especially if they have been together for a long time.

You and your former spouse can set up your own spousal support agreement out of court. Before you do so, it is strongly recommended that you seek legal advice because spousal support is a very complex issue and can be affected by many different factors. Just because a spouse is in a financially weaker position does not mean he or she is automatically entitled to support.

You may also wish to see if your province or territory offers family justice services such as mediation to help you negotiate an agreement.

If you cannot agree on spousal support, you can ask a judge to decide.

When making spousal support decisions involving divorced or divorcing couples, courts must base their decisions on rules set out in the federal Divorce Act. Provincial and territorial laws apply to common-law couples and to married couples until they apply for a divorce.

The Divorce Act sets out certain factors and objectives that a judge must consider when deciding whether a spouse is entitled to support when they divorce. These include:

• the financial means, needs and circumstances of both spouses;
• the length of the marriage;
• the roles of each spouse during their marriage;
• the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
• the ongoing care of the children;
• the encouragement of self-sufficiency within a reasonable period of time; and,
• any order, agreement or arrangement already made about spousal support.

If either spouse is paying child support, the judge must also figure out how a requirement to pay spousal support would affect child support payments. The Divorce Act clearly states that a judge must give priority to child support when a person applies for both child and spousal support. Both parents have an obligation to support their children.

The reasons the marriage ended do not affect a spouse’s legal obligation to support the other spouse following a divorce.

Spousal Support Advisory Guidelines

In an effort to make spousal support more predictable and consistent, the Department of Justice Canada contracted with two family law professors to develop some guidelines.

Unlike the Federal Child Support Guidelines, the Spousal Support Advisory Guidelines have not been legislated. They simply provide suggestions on the appropriate ranges of spousal support amounts and duration of support, in a variety of situations. This allows flexibility to deal with the diversity of marriages.

These advisory guidelines were developed for family law professionals to use when giving advice to clients. Additional tools for family justice professionals have also been developed that will help professionals use the Guidelines.

If you want to use them yourself to calculate spousal support, there are a few key points you should be aware of:

• Spousal support is one of the most complex subjects in family law. You are strongly advised to get legal advice from a lawyer specializing in family law. Even if you can only afford to have one consultation appointment with the lawyer, he or she can give you an overview of your rights. Then you will be better prepared to discuss all the important issues with your former partner.
• The Guidelines do not provide advice on whether a spouse is entitled to support. They only provide advice on appropriate ranges of support in a variety of situations where entitlement to support has been established.
• Special software may be needed to calculate spousal support amounts, especially if child support is also being factored in. At least three companies in the private sector sell software to calculate spousal support. Many family law professionals already have software to calculate spousal support. The Department of Justice was not involved in the development of this software. Please note that the Department of Justice Canada cannot give advice or recommendations on any software that individuals may wish to purchase.
• These Guidelines were designed to be used under the federal Divorce Act to decide on spousal support amounts when married couples divorce. There tends to be a fair bit of overlap between federal and provincial family laws, so the Guidelines are also often used to calculate support amounts when couples separate but do not divorce. However, some provincial and territorial laws have unique features that are not addressed by the federal guidelines.

Facts You Need to Know

• Entitlement to spousal support is not automatic when you get a divorce

  Entitlement to support is decided by a judge before he or she decides how much support you might have to pay or how much you might receive. Similarly, how long the support will be paid is decided after entitlement is established.

• Men can also be eligible for spousal support

  There are many factors that are taken into account when a judge considers entitlement. The relevant factors apply to men and women equally.