Spousal Support: An Introduction

If the relationship between you and your spouse/partner ends and you find that you do not have the financial means to support yourself then you may be entitled to spousal support for either a definite or indefinite period of time depending on your situation.

Generally, it seems as though the spouse/partner who finds himself or herself in a better position financially will be required to pay support to the other. This will allow the spouse who is in need of support:

• to maintain the standard of living to which he or she has become accustomed,
• to have access to finances while searching for an employment position, or
• to pay tuition fees associated with education or training so that he or she may eventually become self-sufficient.

You should be aware of the fact that child support has priority over spousal support. This may result in the inability of the paying spouse/partner to fulfill his or her obligation to the recipient spouse/partner if child support exhausts his or her income.

Your entitlement to spousal support is premised on the obligation that spouses/partners have to support themselves, and each other, provided they have the means to do so.

Spousal support may be awarded under either the Divorce Act or the Family Law Act depending on the nature of your relationship.

The Divorce Act applies to either:

• legally married couples that have been granted a valid divorce, or
• legally married couples who are in the process of obtaining a divorce

The Family Law Act applies to:

• legally married couples who choose not to divorce and separate only, or
• common law couples who have cohabited for a specific period of time and/or who have children

Both Acts contemplate same-sex couples and are not gender biased meaning that dependent husbands may claim support from their wives and vice versa.

Also, you should be aware of the fact that there is no automatic entitlement to spousal support once you satisfy the definition of “spouse” (which may be distinguished from child support). If you or your former spouse/partner are fully capable of supporting yourselves and/or throughout your union remained financially independent then chances are you may not get spousal support, child support may still be ordered though.

Applications may be brought to court or, if the both of you opt for a quicker and more cost-effective method of conflict resolution, then you may settle spousal support in a written agreement or through mediation or arbitration. If you choose to set it out in a written agreement then you may do it yourselves or with the help of a lawyer (recommended). You should also file the agreement with the court so that it may be enforced by the Family Responsibility Office.

Although written agreements are respected by the courts and usually deferred to, cases suggest that if the court is of the opinion that enforcing the contract would be unconscionable then it may set aside the provision (or the whole agreement) and order a different amount. This is contemplated under s. 33(4) of the Family Law Act:

(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section, (a) if the provision for support or the waiver of the right to support results in unconscionable circumstances; (b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or (c) if there is default in the payment of support under the contract at the time the application is made.

Moreover, a 2001 Ontario Court of Appeal decision stated that when considering whether or not to enforce an agreement pursuant to s. 33(4)(a) the court must determine whether unconscionable circumstances have resulted from the agreement by bearing in mind the following three factors:

1. the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith of the parties and their expectations.
2. the results of the support provisions of the agreement, including any hardship visited upon a party, and
3. the parties’ circumstances at the time of the hearing, including their health, employability and ability to maintain their lifestyle.

The Divorce Act does not have a comparable provision; however, the Supreme Court of Canada, in a recent 2003 decision, articulated a test that courts should use when deciding whether or not to override a valid agreement dealing with spousal support in divorce situations.

Here, the courts ruled that the wishes of the parties as expressed in a pre-existing agreement should be set aside where the person challenging the agreement shows that it is not in substantial compliance with the overall objectives of the Act . The test enunciated is as follows:

Stage One – The Formation of the Agreement

1. The court should first look to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it.
   • So, were there any circumstances of oppression, pressure or other vulnerabilities under which the negotiations were held?
   • Notwithstanding the presence of these vulnerabilities, was professional advice sought?
     • This is important because the degree of professional assistance received by the parties will often overcome any power imbalances between the parties.
2. The court must ask whether the agreement is in substantial compliance with the objectives of the Act.
   • Does the agreement further the objectives listed in s. 15.2(6)?
   • You should be aware of the fact that only a significant departure from the general objectives of the Act will warrant the courts’ intervention.

Stage Two – Current Circumstances

1. The court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties
   • The applicant must show that in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of the execution and the objectives of the Act. It will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be ignored.
2. The court should assess the extent to which it is still in substantial compliance with the objectives of the Act.
   • The court should be guided by the objectives of spousal support listed in the Act, but should also treat the parties’ reasonable best efforts to meet those objectives as dispositive of the spousal support issue.
   • The agreement should only be set aside where it fails to be in substantial compliance with the overall objectives of the Act, including certainty, finality and autonomy.

Unlike with child support there are no predetermined table amounts found in the regulations to these Acts for the purposes of determining spousal support. As a result, spousal support is incredibly fact-specific and the amount ordered will vary depending on the case in question and the circumstances of the parties involved.

In 2008, the Ontario Court of Appeal stated that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.”

However, Spousal Support Guidelines do exist which provide formulas that judges may use when trying to make a determination. These guidelines are simply advisory and not law therefore it is not necessary that they be used when trying to figure out an amount to incorporate into an order. The benefit of adhering to the guidelines, though, is that they afford certainty, predictability and objectivity with regards to spousal support. Moreover, “they will reduce the need to rely on the labour-intensive, and thus expensive, budget-based evidence employed in a typical case.”