One of the common claims in family law is for spousal support. Yet whether you are making a claim for such support or defending against a claim, it is important to remember that spousal support, a form of financial support, is not automatic or straightforward compared to child support. There is a two-step analysis which first requires the potential recipient to prove an entitlement to such support. From there, the length of support (duration) and in what monetary amount (quantum) will depend on the specific facts of the relationship. It is crucial to understand how to calculate spousal support using the Spousal Support Advisory Guidelines, which provide starting points for determining both the duration and quantum of support.
What is Spousal Support?
Spousal support, also known as alimony, is a type of payment made by one spouse to the other after separation or divorce. Spousal support is not an automatic right, and entitlement to support can be established if a spouse can demonstrate financial need arising from the marriage or its breakdown, an entitlement to compensation for the economic consequences of the marriage, or a contract between the two spouses that sets out a support obligation. The duration of spousal support payments depends on various factors, including the length of the relationship and the specific circumstances of the case.
Step One: Proving an Entitlement to Spousal Support
There are three conceptual grounds for entitlement to support: compensatory, non-compensatory, and contractual.
Compensatory entitlement arises in circumstances where one spouse makes certain sacrifices during the relationship to their economic disadvantage without adequate compensation. For example, this often occurs where the potential recipient remains home with the children full-time or part-time or moves for the payor’s career.
Non-compensatory entitlement arises out of a financial need and often reflects the economic interdependency between the spouses. It can arise both where a potential recipient has little to no income and therefore an inability to meet basic needs or where there would be a significant drop in the standard of living which occurred during the relationship.
Contractual entitlement arises where the potential recipient and the payor have agreed, either before or during the relationship, that spousal support would be payable in the event of a separation. This often occurs where the parties enter into a formal cohabitation agreement or marriage contract but may also occur where there is an implied or informal agreement. Lastly, it can occur where a payor sponsors the immigration of the potential recipient and agrees to support them under an immigration sponsorship agreement.
Step Two: Duration and Quantum of Spousal Support Amounts
Once entitlement has been proven, the duration and quantum of support must then be determined. Duration refers to the length of time that the recipient will receive support while quantum refers to the amount of support that will be payable.
As an example, an older potential recipient who was a stay-at-home-parent in a long-term marriage and who has limited income and income earning capacity would likely receive spousal support for a longer duration and at a higher quantum than a younger potential recipient who was in a short-term relationship and has no impediments to their ability to work.
Of course, with all things in law, there are exceptions to these basic rules and the final determination will all depend on the specific facts of each relationship. Spousal support can be influenced by various special circumstances that may arise during or after a divorce. Understanding these circumstances is crucial for both the paying and receiving spouses, as they can significantly impact spousal support obligations.
Modifying or Terminating Spousal Support
Spousal support can be modified or terminated if there is a material change in circumstances. A material change in circumstances can include a change in income, a change in the number of children eligible for child support, or a change in the health of either spouse. If you or your spouse’s situation changes, it may be necessary to change the spousal support terms in your separation agreement or court order. If a new agreement cannot be reached, you can file a motion to change the spousal support order where a court will determine whether the material change in circumstances warrants a change to the spousal support terms.
Tax Implications and Financial Considerations
Spousal support payments have tax implications, and the Canada Revenue Agency has information to help determine how the support payments that you pay or receive should be included or deducted from your income on your income tax return. If you are paying monthly spousal support, you may get an income tax deduction for the total spousal support that you pay each year, provided it is pursuant to a written agreement or court order and in compliance with the Income Tax Act. Inversely, if you are receiving monthly spousal support, you may be required to claim the support as income. It is essential to consider the tax implications and financial considerations when negotiating a spousal support agreement or court order.
Modifying or Terminating Spousal Support
Spousal support can be modified or terminated if there is a material change in circumstances. A material change in circumstances can include a change in income, a change in the number of children, or a change in the age or health of either spouse. If you or your spouse’s situation changes, it may be necessary to change the spousal support terms in your separation agreement or court order. You can file a motion to change the spousal support order, and the court will consider the new circumstances when making a decision. It is essential to seek the advice of a family law professional if you need to modify or terminate spousal support. Legal obligations to pay support arise from court orders or agreements, and these obligations may be affected by significant changes in circumstances.
Enforcing Spousal Support Orders
Enforcing spousal support orders is typically done by filing the spousal support order with the Family Responsibility Office (FRO). The FRO is a government agency responsible for enforcing child and spousal support orders. Once the order is filed with the FRO, the agency will take steps to help ensure that the support payments are made, providing a structured and reliable method for enforcement.
In some cases, the court may also order the paying spouse to pay a lump sum or to make periodic payments. The court may also order the paying spouse to provide ongoing financial disclosure, such as tax returns and pay stubs, to ensure that the correct support payments are being made accurately and consistently.
Get in Touch with our Ottawa Spousal Support Lawyer Today!
Spousal support is a complex and nuanced area of family law that requires careful consideration of various factors, including income, expenses, and special circumstances. The Spousal Support Advisory Guidelines provide a framework for calculating spousal support, but the court has discretion to adjust the amounts and duration of support based on the specific circumstances of each case.
If you are going through a divorce or separation and are concerned about spousal support, it is essential to seek the advice of a family law professional. They can help you navigate the complexities of spousal support and ensure that your rights and obligations are protected.
For help, Call RPB Family Law today!
