When a marriage or common-law relationship ends, one of the most contentious and emotionally charged issues that may arise in a family law matter is spousal support. Many payors are reluctant to pay spousal support for a variety of reasons such as perception of unfairness, financial strain, and complexity of calculation.
In Ontario, spousal support is not automatically granted. There must be an agreement or a finding of entitlement.
There are three claims for entitlement:
- Compensatory,
- Non-compensatory, and
- Contractual claims.
1. Compensatory claims arise in two ways: (1) from a support recipient’s economic loss or disadvantage resulting from the roles assumed during a marriage, or (2) when the support payor has benefitted economically from those roles without compensating the recipient.
Examples: taking on childcare responsibilities, leaving a job to relocate for your spouse’s job, or managing the household to support your spouse’s career.
2. Non-compensatory claims are based on the recipient spouse’s need. As long as a payor has the ability to pay, they may be ordered to cover their former partner’s basic needs or maintain the standard of living enjoyed during the marriage.
Examples: financial need may arise from a recipient’s older age, health issues, or lack of necessary skills to re-enter the workforce.
3. Contractual claims arise from what has previously been agreed to in a contract or separation agreement.
If there is NO entitlement, NO spousal support is payable.
Spousal Support Guidelines (SSAGs)
If a party is entitled to spousal support, we use the Spousal Support Advisory Guidelines (SSAGs) to help determine the quantum (amount) of support and duration (period of time). The SSAGs are guidelines, not binding law, however, a failure of the courts to apply them could be grounds for appeal.
The SSAGs offer two main formulas:
- The Without Child Support Formula, and
- The With Child Support Formula.
1. Without Child Formula
This formula applies when there are no children of the marriage, or the children are no longer dependents.
How to Calculate Duration:
This is calculated as a range. At the low end, support can continue post-separation for half the length of the marriage. At the high end, it can continue for the full length of the marriage. For example, the low end of a 12-year relationship can see support being paid for 6 years after the parties separate and the high end can see support being paid for 12 months post-separation.
- With Child Formula
This formula applies to families with dependent children of the marriage and a concurrent child support obligation. This is regardless of whether the child support is actually being paid. The goal of this formula is to maintain a similar standard of living for the children between both parents’ homes.
How to Calculate Duration:
Duration is determined in ranges for this formula as well. The low end of the ranges is: (1) half the length of cohabitation, or (2) until the youngest child enters full time school. The high-end ranges are: (1) the full length of the cohabitation, or (2) until the youngest child finishes school.
Exceptions
Duration can be ordered indefinitely if (1) the cohabitation lasted 20 years, or (2) the cohabitation lasted more than 5 years and the age of the support recipient plus the years of cohabitation at separation equals 65 or more. The quantum would be subject to a material change in circumstance.
For amount, if the payor earns over $350K per year or under $20K per year, the SSAGs become highly discretionary, and counsel may have to get creative with settling spousal support matters. However, the courts will generally still review the Guidelines at all income levels and consider them.
Conclusion
While the SSAGs help estimate how much one is owed/owing in spousal support, every case is unique. As many spousal support orders can only be reviewed if there is a material change in circumstances, it is all the more important to get legal advice specific to your matter.