Spousal support is often referred to as alimony. Whatever you choose to call it, one thing we know is it is very often a highly contentious issue between spouses.
Married spouses, and in some cases, unmarried spouses can have the obligation to support one another financially. In the case of unmarried spouses, the obligation to pay spousal support arises once the parties have been in a relationship and cohabiting for three years or more, or if the parties have a child together if they have been in a relationship for less than three years.
Whether you are likely to be the recipient or the payor of spousal support, it is important to have a lawyer who understands the various nuances of the spousal support regime in Ontario to help guide you through the process. Every case is somewhat factually different and one should consult a lawyer before agreeing to support or agreeing to release support.
Who is entitled to spousal support? The spouse with the higher income at the date of separation doesn’t necessarily have to pay the other spouse spousal support. There must first be a finding or an agreement as to entitlement. There are two claims for entitlement- 1) Compensatory and 2) Non-Compensatory Claims.
These are based either on a recipient’s economic loss or disadvantage because of the marriage. For example, the spouse who assumed the role of the “stay-at-home mother/father” during the common law relationship or marriage and completed the domestic duties including child care responsibilities could be compensated for her/his sacrifices and contributions to the relationship or marriage. Other examples include when one spouse has received an economic benefit for which the other spouse has not been compensated, such as leaving her/his job/career to move for the other spouses job/career, or helping her/him in obtaining her/his current employment position.
These are based on need. This can be a need to cover basic needs or to maintain a certain lifestyle the spouse was accustomed to during the relationship or marriage.
Entitlement may rely upon both compensatory and non-compensatory claims. It is important to note that if you fail to establish entitlement, you will not get spousal support.
If entitlement has been established we turn to the Spousal Support Advisory Guidelines (SSAG), sometimes referred to as the “SAGS” for short, to help determine amount of support (quantum) and the length of time (duration) the payor spouse must pay the payee spouse.
The SSAG have not been legislated or made mandatory in law. However, more often than not courts refer to the SSAG in their Spousal Support decisions. The SSAG used in conjunction with legal software assist both lawyers and judges in determining a fair range of spousal support that should be paid by the payor and for how long. Some of the factors considered are the length of the cohabitation/marriage, the spouse’s ages at separation, the children’s ages at separation, the spouse’s income etc. The SSAG are a very useful tool but are discretionary. There may be exceptions where the quantum and duration may depart from the suggested ranges altogether.
Finally, ongoing monthly spousal support awards are taxable in the hands of the recipient and tax deductible to the payor. This is not the case regarding “lump sum” spousal support settlements described below.
Lump sum spousal support is desirable for spouses who want to end their relationship or marriage without an ongoing monthly spousal support obligation. When it comes to the issue of spousal support, we often hear the phrase, “I just want a clean and final break.” While Lump sum payments can be a convenient way to dispose of the issue they come with associated risks for both the payor and recipient. A risk to the recipient is he/she may remain unemployed or underemployed well after the lump sum funds are spent on living and other expenses. On the other hand, a risk to the payor is that shortly after the payment is made the recipient could find lucrative employment or begin to cohabit with a new partner who supports them financially reducing their need for support.
Spousal Support Releases
A court will not order a release but parties can negotiate one. It will not form part of a court order but can be in your Minutes of Settlement and/or Separation Agreement. A release clause can release one or both spouses from paying spousal support to the other. Release clauses are not 100% bullet proof. In limited circumstances, courts may retain discretion if one spouse seeks to set aside the release.
A release can take effect immediately or after payments have been made over a certain period of time or a certain quantum has been paid. Spousal Support releases are complex. Independent legal advice is always recommended.
Spousal support is one of the most challenging areas in family law. The lawyers at the Masellis Family Law Group have extensive knowledge and experience in spousal support matters. Our lawyers and staff are committed to protecting your legal rights and getting you the most just and fair outcome possible. Whatever your needs are, we at the Masellis Family Law Group encourage you to contact us for a free, no obligation, confidential 30 minute in person consultation to discuss your matter. We are here to help.