Spousal support is not an automatic right associated with a breakdown of the marriage.
Your spouse may be entitled to support if he or she can demonstrate one
or more of the following: 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 of you that sets out a
support obligation on your part.
Support is not restricted to married parties. The
Family Law Act Part 3, which governs support obligations for unmarried spouses, or married
spouses who are not pursuing a divorce, defines “spouse” as
including cohabiting couples who have lived together for a period of at
least three years, and cohabiting biological or adoptive parents.
Once entitlement has been established, the court will consider the appropriate
amount and duration of support, generally in line with the Spousal Support
Q: Who is eligible for spousal support?
Support is not an automatic right associated with a breakdown of the marriage.
In 1999, the Supreme Court listed the three grounds necessary to establish
an entitlement to spousal support (Bracklow v. Bracklow).
In Ontario, you are only eligible for spousal support:
To compensate a spouse for hardship or opportunities lost due to the marriage
or its breakdown;
To fulfill a contractual agreement, expressed or implied, that the parties
were responsible for each other’s support; or
On a non-compensatory basis, to assist a spouse in need where there is
the capacity to pay, even in the absence of a contractual or compensatory
foundation for the obligation.
In other words, a spouse seeking support must demonstrate either a compensatory
basis for support, need, or a contractual obligation.
The latter two are fairly self-explanatory criteria. Regarding the compensatory
basis of support, in 1992, the Supreme Court held in
Moge v. Moge that spouses are entitled to be compensated for contributions to the marriage,
and for losses sustained as a consequence of the marriage: for example,
as a result of staying out of the work force in order to raise children,
or putting one’s career goals on hold in order to accommodate a
This decision reflects the provisions of the Divorce Act, which states
(s. 15.2(4)) that the court in considering a support award shall take
into consideration the condition, means, needs, and other circumstances
of each spouse, including the length of time the spouses cohabited; the
functions performed by each spouse in the relationship; and any order,
agreement or arrangement relating to support of either spouse.
The Divorce Act further states (in s. 15.2 (6)) that the 4 objectives of
a spousal support order are to:
Recognize any economic advantages or disadvantages to the spouses arising
from the marriage or its breakdown;
Apportion between the spouses any financial consequences arising from the
care of any child of the marriage over and above any obligation for the
support of any child of the marriage;
Relieve any economic hardship of the spouses arising from the breakdown
of the marriage; and
In so far as practicable, promote the economic self-sufficiency of each
spouse within a reasonable period of time.
Spousal support is not restricted to married parties. The Divorce Act governs
support for formerly married spouses, but the Family Law Act also includes
spousal support provisions. In those provisions, the term “spouse”
includes cohabiting couples who have lived together for a period of at
least three years or cohabiting biological or adoptive parents (s. 29).
Whether the spouses are married or not, the court will not consider spousal
misconduct when making a support award. This means that the conduct of
either party has no impact on their entitlement for support. Even if adultery
is the reason for the breakdown of the relationship, parties are still
eligible to apply for support.
The simplest way to initiate spousal support is by way of a separation
agreement under the guidance of a family lawyer. Lawyers use specialized
software to calculate spousal support obligations that contemplate both
current and future need.
Q: How is spousal support calculated?
The Spousal Support Advisory Guidelines serve as a starting point for quantum
and duration of support. Instead of generating a definitive number, the
Spousal Support Advisory Guideline formulas provide ranges for both support
amount and duration. A court can choose to follow the guidelines or depart
from them in any particular case. The Guidelines will provide a range
and duration for monthly support payments, but spouses are also free to
negotiate (and the court has discretion to order) an equivalent lump sum
The Guidelines are largely based on the length of cohabitation (married
or common law). For married spouses, the formula contemplates time spent
cohabiting before and during marriage. There are two basic formulas used
to calculate spousal support: the
With Child Support formula, and the
Without Child Support formula, depending on whether the payor will be paying spousal support
in combination with child support.
Q: How can I change my spousal support? If my income is drastically reduced,
can I decrease my support payments?
If your support obligation is the result of a court order or an agreement
filed with the court, you will have to bring a Motion to Change in order
to vary your support. There are two ways in which this can be done:
As a Consent Motion to Change, if you and your spouse both consent to the
As a Motion to Change without Consent, if your spouse does not agree to
In order to persuade the court to vary (or change) an existing order or
agreement, you must show that there has been a
material change: a change in the condition, means, needs or other circumstances
of either former spouse since the making of the support order.
If you have lost your job or have had your hours drastically reduced, this
may constitute a material change, provided this event was unforeseen at
the time of the original support order, and the loss of employment affects
your ability to pay support.
See the article
Changing Spousal Support for more information on the law in this area, and what constitutes a material
change in circumstances. See the
Spousal Support Forms section for information about how to bring a Motion to Change.
Q: Do I have to go to court?
No. Spousal support arrangements can be made by way of a separation agreement.
If parties are unable to come to an agreement by negotiation, there are
other ways to resolve disputes surrounding support. Parties may negotiate
with the assistance of qualified lawyers either by correspondence or in
four way joint meetings, or parties may choose to collaborate or participate
in mediation as alternatives to court. Alternative methods for resolving
disputes are often faster and less expensive than the traditional litigation approach.
Q: Are Support Payments Taxable Income in Canada?
One common question that gets asked with respect to family law matters
is whether spousal and child support payments are taxable income in Canada.
The short answer is that it depends. The tax rules are different for spousal
support and child support.
Is spousal support taxable income in Canada?
In Canada, spousal support does have tax implications. There are various
options for parties with respect to spousal support including periodic
payments, lump sum payments or options in between. The tax implications
also depend on whether you are the party who is paying the spousal support
or the party receiving the spousal support. In order for spousal support
payments to be considered taxable and deductible they must be; paid on
a regular and periodic basis; written in a court order or separation agreement;
and paid to the former spouse and not a third party.
What if I am the party paying the spousal support?
If you are paying monthly spousal support to a former partner you will
get an income tax deduction for the total spousal support that you pay
each year providing it is pursuant to a written agreement or court order.
However, you will not be eligible for this tax deduction if you make one
What if I am the party receiving the spousal support?
If you are receiving monthly spousal support, you are required to pay income
tax on the total amount of support that you receive each year providing
there is a written agreement or court order. You may also claim a tax
deduction for the legal fees that you spent in order to obtain this monthly
However, if you receive all of your spousal support in one lump-sump payment,
you do not pay income tax on it. You also will not be able to claim a
tax deduction on any legal fees that you spent to get this lump-sump payment.
Determining the method of spousal support payments can have significant
tax implications for all parties involved, it is best to consult a lawyer
or accountant before deciding on a support payment method.
Q: How long do I have to pay spousal support?
For post separation families without children, support duration ranges
from one-half to one year of support for each year of marriage (or cohabitation),
with duration becoming indefinite after twenty years of marriage. Since
one of the factors in determining a spousal support entitlement is age,
the Spousal Support Advisory Guidelines suggest indefinite support if
the marriage has lasted five years or longer and the years married added
to the support recipient’s age at separation total 65 or more. This
reflects the diminished earning capacity of separating parties as they
reach retirement age.
For post separation families with children, factors impacting support duration
include length of marriage, the time remaining until the youngest child
of the marriage completes high school, and the age of the recipient (particularly
those nearing retirement).
Q: My former spouse/partner is refusing to make spousal support payments.
How can I get my support order enforced?
If you haven’t done so already then you may take your former spouse/partner
to court and get an order requiring him or her to pay support. Once the
order is made it is filed with the FRO who then has the power to enforce
it using various enforcement mechanisms.
If instead an order (or agreement) has been made, and filed with the FRO,
and your former spouse/partner is not abiding by the order or making the
contact the FRO to ensure that they find some way to get the payments to you.
If that fails then your former partner/spouse will be taken to court and
found to be in contempt of his or her orders and either fined or imprisoned.
However, the above only applies if you have not withdrawn from the services
of the FRO. If you have withdrawn then you will need to re-file the order
or agreement with the FRO so that it can start enforcing the payments.
In order to do so you will need to pay a $50.00 fee.
If you find yourself in this position, you may contact the FRO Customer
Service Unit or Enforcement Call Centre at 416-326-1817 (or toll free
Q: My former spouse/partner’s income has increased dramatically.
Can I go to court and get an order to increase his support payments?
Yes. You may bring an application to vary an existing order when your former
spouse or partner’s income increases dramatically.
The court will consider whether there has been enough of a “change
in circumstances” to warrant an increase in support payments. They
will also consider whether an increase will further the objectives of
spousal support. Once that is determined and entitlement is found then
the court may choose to order a new amount by inputting the relevant information
into the Spousal Support Advisory Guidelines and then considering other
relevant factors OR the court may choose to order another amount that
is fair given the circumstances. The obligation of spouses to support
one another justifies a variation in a pre-existing order whenever there
is an increase in the paying parent’s income.
If instead you and your former spouse/partner have decided to arrange support
in an agreement then you may change the agreement. Ensure that the change
is consented to, signed and witnessed. Once you have changed the agreement
ensure that you file it with the
FRO for enforcement purposes.
Q: What will happen if I don’t make my spousal support payments?
If you decide not to make your support payments then the FRO may take action
and begin enforcing the order by using one (or more) of the following
taking the payments directly from you, the paying parent.
Deducting the payments directly from your wages or other sources of income,
i.e. sales commissions, Employment Insurance, Workers’ Compensation,
income tax refunds, severance pay and pensions.
Registering a lien against your personal property or real estate
Garnishing your bank account or garnishing 50% of a joint bank account
that partly belongs to you.
Making an order against another person who is helping you hide your income/assets.
Suspending your driver license.
Reporting you to the credit bureau (which would make it difficult for them
to get a loan).
Cancelling your passport.
If the FRO is unable to enforce the payments using one of the aforementioned
mechanisms then you may be brought back to court and found to be in contempt
of the order. The result of this finding would be the imposition of either
a fine or term of imprisonment.
Q: Can my former spouse/partner avoid making spousal support payments by
filing for bankruptcy?
No, he or she cannot. Child and spousal support are not affected by a claim for bankruptcy according
to s. 178(1)(c) of the
Bankruptcy and Insolvency Act (BIA):
Meet Our Dedicated Team of Lawyers
Over a Century of Collective Experience
Andrew Feldstein graduated from Osgoode Hall Law School in 1992. Prior to focusing exclusively on family law, Andrew’s legal practice covered many different areas, including corporate commercial. One of Andrew’s fundamental objectives is to achieve those goals mutually and collaboratively, as set out by him and his client.
Veronica Yeung joined the Feldstein Family Law Group, P.C. as a summer student in 2014 and returned as an articling student in 2015. Following her call to the Ontario Bar in June 2016, Veronica was welcomed to the team as an associate lawyer.
Shana joined Feldstein Family Law Group P.C. as an articling student in 2017. Following her call to the Ontario Bar in June 2018, Shana was welcomed back to the firm as an associate. While completing her articles, Shana assisted with legal matters covering all areas of family law.