Upon the breakdown of a marriage or common law relationship, one party may be entitled to spousal support as a result of becoming economically disadvantaged, for reasons such as that they took on more household and child rearing responsibilities during the relationship.
According to the federal Divorce Act and the provincial legislation, when a party files for divorce a party can apply for spousal support. The Divorce Act and Family Law Act do not state any time limits for commencing an application for spousal support.
This extends to unmarried couples who have cohabited in a common law marriage for a minimum of three years or have a child together (adopted or birth child). In Ontario, the unmarried individuals must have been cohabitating “continuously” throughout the relationship. 1 This means that there has been a long period of commitment and an acceptance from those the couple knows.
Entitlement is determined on three bases. These include: compensatory, contractual, and non-compensatory. Compensatory acknowledges that at the end of a marriage, spouses should be compensated for their contributions to the marriage and any economic losses they sustained because of being married. Contractual entitlement recognizes that any explicit or implicit agreements entered by the spouses can create or negate spousal support obligations. Non-compensatory (or needs based) support acknowledges that if the spouse has the capacity to pay for the other then they should as the marriage was premised on mutual support and contributing to the needs of the other. Parties can be entitled to support on more than one ground.
In determining the amount of spousal support there are many factors to be considered. The court considers the “condition, means, needs and other circumstances of each spouse” when making a support order. This consideration looks at the age, obligations, possible dependents, health, stage of life, income, earning capacity, sources of financial benefit, standard of living, lifestyle, remarriage, inheritance, state of the job market, cessation of employment, etc. of one or both parties.
To calculate the appropriate quantum, a detailed explanation of income and expenses should be conducted. All expenses should be added to calculate the amount of support needed. There are Spousal Support Guidelines to aid in this calculation. As well, there are websites that can help in this calculation, such as: http://mysupportcalculator.ca.
Order – Lump Sum and Periodic Payments
The Divorce Act stipulated that the court could order, in their final orders, that support be payable by periodic payments, a lump sum or a combination of the two. The rule, or presumption, is that of periodic payments. These support orders can be retroactive and cover a time before the order had been made. There are also interim or temporary orders for spousal support.
Support can be paid for a limited time, indefinitely, or until a specific event. According to the Spousal Support Advisory Guidelines, this duration depends on the length of the marriage and the age of the children. Generally, if the marriage was 20 years or longer, or if the marriage lasted over 5 years and the marriage length and the age of the spouse receiving support add to 65 or more, then indefinite support is awarded.
Every case is unique and decided on its own set of circumstances. If you require assistance with your family law matter, we urge you to contact our office to speak with a lawyer.