Section 33 of the Family Law Act (FLA) and Section 15 of the Divorce Act (DA) gives the court the authority to order a person to provide support for his or her dependants and determine the amount of support. Only individuals who are married may apply for spousal support under the DA . Individuals who are both married and common law may apply for spousal support under the FLA .
Even if you are not married, you can be defined as a “spouse” under s. 29 of the FLA for the purposes of spousal support. According to s. 29 of the FLA a spouse includes:
- two person who are married to each other;
- two persons who have entered into a marriage that is voidable or void, in good faith on the part of the person relying on the clause to assert any right;
- two persons who are not married to each other and have cohabited continuously for a period of not less than three years; or
- two persons who are not married to each other and have cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child.
Provided that an individual fits into one of the categories above they may be eligible for spousal support. Below we have listed a few of the factors that are taken into consideration when determining the duration and quantity of spousal support, under s.33 (9) of the FLA .
- the dependant’s and respondent’s current assets and means;
- the assets and means the dependant and the respondent are likely to have in the future;
- the dependant’s capacity to contribute to his or her own support;
- the respondent’s capacity to provide support; etc
Similar factors are considered under s. 15.2(4) of the DA . These factors include:
- the means of each spouse;
- the needs and other circumstances of each spouse;
- the length the spouses cohabited;
- the functions performed by each spouse during cohabitation; and
- any order, agreement or arrangement relating to support of either spouse.
It is common practice to calculate spousal support based on the Spousal Support Advisory Guidelines (SSAG) . SSAG is not based on mandatory or legislated guidelines. Basically, the lawyer inputs the parties’ salaries and all relevant information such as duration of the marriage, age of the parties, which individual has custody of the children, and age of the children to arrive at figures indicating how much spousal support should be paid. The Court will look at the calculations and decide what is applicable and fair. It is in our experience that judges will first apply the law regarding spousal support and use the SSAG to determine that this calculation makes sense. However, judges are not required to follow SSAG and there is room or discretion.
In Ontario, the obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is as unconciousable as to constitute a gross repudiation of the relationship (s. 33(10)) of the FLA . A repudiation of the relationship is a test with a very high threshold, therefore, the conduct of each spouse is generally not considered when determining spousal support. Spousal misconduct is not considered under the DA when making an order or interim order for spousal support (s.15.2(5)).