Spousal Support is money paid by one spouse to the other after they separate or divorce. It is sometimes called alimony or maintenance. Unlike child support, which can be looked up based on tables in the child-support guidelines, spousal support is a much more subjective issue. While spousal support guidelines do exist – known as Spousal Support Advisory Guidelines – they have not been federally mandated. Ultimately, it is up to a judge to decide whether a spouse should receive spousal support, how much they should get, and for how long.
The federal Divorce Act sets out the spousal support rules for married couples who divorce. Since the Divorce Act is a federal law, the rules apply across Canada. Provincial or territorial laws set out the rules for unmarried couples who were in a common-law relationship and for married couples who separate but who are not divorcing. These rules vary across Canada. You are encouraged to check the website of your provincial or territorial Ministry of Justice or Attorney General for this information, or you may contact a lawyer.
Definition of Spouse
Spousal support is governed by provisions in the Divorce Act, which only apply to legally married (including same-sex) spouses. Common-law spouses may be covered under provincial law if they fit the province’s definition of spouse: in BC, the new Family Law Act has expanded the definition of spouse to include people who have lived together in marriage-like relationships for more than two years, and unmarried couples who have lived together for less than two years but have a child together.
Types of Spousal Support
In Canada, there are three bases for entitlement to spousal support:
- Compensatory: To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown. A typical candidate for compensatory spousal support would be a spouse with the lower income that has given up a career or some other power to earn income in order to care for children of the marriage.
- Contractual: To fulfill a contractual agreement, express or implied, where one or both parties were responsible for the other’s support. For example, if a couple had a prenuptial agreement whereby one spouse would support the other in the event of marriage breakdown.
- Non-compensatory: To assist a spouse in financial need if the other spouse has the ability to pay. This usually requires a “needs and means” analysis to determine financial need.
Criteria for Spousal Support
Judges must consider a number of factors when deciding if a spouse should get support after a divorce. These factors include:
- The length of the marriage;
- the financial means and needs of both spouses;
- the roles of each spouse during their marriage;
- the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
- the care of the children;
- the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time;
- existing orders, agreements or arrangements already made about spousal support.
To determine the ability to pay, a judge will decide how much the payor can afford to pay and still have enough to live on to a reasonable standard of living. All sources of income are included and may be imputed. Quitting a high-paying job to avoid paying spousal support doesn’t cut it: there is a well-known case where the husband quit a high-income position to go raise mushrooms, and then claimed he no longer had the means to pay support. While the judge did not stop him from growing mushrooms, he ruled that he was still liable for spousal support based on his previous level of income.
Ideally, spousal support is dealt with after the issue of property division has been settled, because the amount of property awarded can affect the need for and the amount of spousal support.
The first consideration is does the recipient have enough money to live on? The judge will look at the spouse’s ability to earn income, his or her marital and personal assets to see if they can provide support. The spouse asking for support is required to seek economic self-sufficiency within a reasonable period of time.
Length of Marriage and Duration of Support
The length of marriage will effect duration of spousal support. The range can stretch from no spousal support at all for very short marriages to the possibility of permanent support for long marriages over 25 years. For marriages of 20 years or more, the Spousal Support Advisory Guidelines (SSAG) suggest a duration range of one year of support for every year of marriage at the upper end, and half that at the lower end. Age is also a factor: a 20-year marriage that ends when a spouse is 38 will likely receive support for a shorter time than someone who is 60.
Spousal support will stop on the death of the recipient, but not on the death of the payor. His or her estate will continue to be liable for the payments.
If the recipient remarries or enters a common-law relationship, support may stop, but it is by no means a certainty. It will be up to a judge to decide.
The standard of living the spouses were accustomed to during the marriage is taken into consideration. For example, after a 25-year marriage lived lavishly on a husband’s yearly income of $500,000, annual spousal support of $40,000 would be deemed unreasonably low; whereas, if the husband earned $50,000 a year, it would be far too much.
Age and Health
If either spouse is disabled or retired, whether or not they are receiving a guaranteed permanent income becomes relevant. If either spouse is more than 50 years old and has never worked, they will find it hard to find employment and may require permanent support.
Just as with child support, it is common that changes in circumstances causing an increase or decrease in the income or expenses of either or both spouses will lead to an application to the court for a variation in the spousal support amount. Many payors would prefer the term and amounts to be non-modifiable, as I do. That way you know when it will all end. But, in Canada, as Michael Cochrane writes in his book, Surviving Your Divorce, “it is now rare to see a Canadian court order a fixed termination date for spousal support.” More frequently they order that the matter should return to the court for a review at a later date.
How Much Spousal Support Should I Pay – or Receive?
Developed with funding from the federal Department of Justice, Spousal Support Advisory Guidelines (SSAG) were set up in an effort to make spousal support more predictable and consistent. While not law, these guidelines are now in common use in several Canadian courts. They use two basic formulas to provide a range for the amount and duration of spousal support based on the number of children, the children’s ages and the spouses’ annual incomes. The courts tend to use these figures as a starting point rather than an absolute solution. The SSAG have a gross payor income ceiling of $350,000, and should no longer be automatically applied for incomes above this level.
Spousal support payments are tax deductible to the payor and taxable to the recipient. If you are the payor, it is important to register your court order or written agreement regarding spousal support with CRA on Form T1158, Registration of Family Support Payments. This will reduce your taxes at source based on your spousal support payments.
Spousal support payments do not cease on the death of the supporting spouse – they become an obligation of the deceased’s estate. Life insurance is one way to guarantee that the payments will be made. If you are receiving spousal support, it is a good idea to make sure your spouse has life insurance; it should be specified in your divorce agreement. But there is an important wrinkle: an ex-husband may well have taken out life insurance, but there is nothing to stop him from changing the beneficiary or even cancelling the policy. To make matters worse, the insurance carrier is under no obligation to report such a change to a third party, so his spouse would never know. The way around this is for the spouse receiving support to own the insurance policy on her ex-husband’s life. She could get him to pay for it – perhaps through additional spousal support – but she needs to own the policy and be its beneficiary.
Provincial and Territorial Maintenance Enforcement Programs
The Maintenance Enforcement Program is set up to assist families and children who are entitled to child support or spousal support under maintenance orders or separation agreements. In cases where someone is not receiving maintenance payments on time or at all, the program will take steps to collect the outstanding amounts directly from the person required to pay maintenance, and send the money to the recipient. Go to the Government of Canada’s Provincial and Territorial Maintenance Enforcement Programs for more information on your provincial programs.