| |
|
|
|
|
| |
|
|
|
Spousal Support
My common-law spouse left after 7 years of a common-law relationship. During the last five years of the relationship, he was employed by my company. He was laid off 6 months after he had left the relationship. While employed he was working in the IT field and he clearly has marketable skills. If I offer to pay for additional IT training to 'top up' his skill set and enable him to receive industry recongnized certifications, will I still have to pay him spousal support? What if he fails to complete the training program? (by S of Hamilton, ON) Firstly, you're in Ontario. I strongly suggest that you contact a lawyer in that province to give you advice! I can tell you what the practice is in BC but because you were in a common-law relationship, the issue of spousal support will have to be dealt with under Ontario's Family Law Act rather than the Divorce Act. (The Divorce Act is federal and I could have told you something about that.) So, read my answer with caution! If you were in BC, I'd tell you that nothing says that spousal support MUST be paid following the breakdown of a relationship. Spousal support is payable depending on the circumstances of each case. I would be VERY surprised if the Ontario act required that support be paid. In general, and under the Divorce Act at least, spousal support is payable where a spouse has suffered a loss or some form of economic disadvantage arising from the marriage or the breakdown of the marriage. In BC the law relating to the Divorce Act is pretty uniformly applied to our provincial legislation; I'd expect the same is true in Ontario. A classic situation where support would be payable is the Cleaver family in TV's Leave it to Beaver. (Read that section in my website.) Now in your case, I imagine it will be hard for your ex to point to economic disadvantage resulting from the relationship or its breakdown. He was employed during the relationship and, yes, you laid him off, but he's still employable. If his skill set is a little rusty, that's not your fault nor is it the fault of the relationship. He could have taken retraining if he'd wanted to. If I were in your shoes, I would NOT offer him retraining and I would certainly take the view that he isn't entitled to support from you. He clearly has the ability to be self-sufficient (another factor in making spousal support orders) and he should be. Hell, your company didn't lay him off until 6 months after your relationship ended! Stick to your guns on this one... unless there's some other critical factor of which I am unaware, I can't see how he'd be entitled to support from you. Again, you really ought to seek the advice of an Ontario lawyer! Click here to go to the top of the page. My estranged wife is asking for child support and alimony appraoching 70% of my income. She is 40 years old, had a career, although took some time off, but is fully capable of working either full-time, part time, or even from home. My income is high by Canadian standards, but I work hard and earn it. She is looking to take $6000 per month from me, and leave me with $2000 to live on! How feasible is it that a judge would consider this a fair settlement? Help! (by S of Vancouver, BC) It doesn't strike me as particularly likely that the court would award your wife child support plus spousal support equivalent to 75% of your income. Of course, I am not aware of all of the circumstances of your marriage and financial situation. Spousal support awards are extremely variable and depend almost wholly on the facts particular to each couple. While I am aware of circumstances in which an award of that magnitude might be made, it is, in general, unlikely. In most cases you can't do a thing about child support; that's a matter of looking up your obligation in the Child Suport Guidelines and is, usually, a fixed expense. Spousal support, however, is another story. Marriage is not a life-long meal ticket. There are a lot of considerations that the court takes into consideration, one of the most important of which is the idea that your wife has an obligation to become self-sufficient. If she is capable of working, she must work. There are a number of competing interests that play into spousal support awards, and it's difficult to summarize them all. Here are a few:
I think what you should do is first look at your Guideline child support obligation and then at the children's special expenses (school costs, daycare, music lessons, etc). Deduct that from your monthly income. Then look, conservatively, at your own personal, reasonable expenses (rent or mortgage, utility bills, credit card payments, car lease, etc) and deduct that from your monthly income. What have you got left over? What can you reasonably afford to pay your wife each month? You may also wish to propose a structured spousal support arrangement with support payments that decrease every six months or so and has a fixed end date. This will allow you to more effectively manage your finances and provide your wife with an incentive to return to the work force. Click here to go to the top of the page. I'm going through a terrible, ugly divorce. I have been very generous with my estranged wife and attempted to settle. She has been vindictive and out for blood. I have been very generous in child support(paying over the scale) and alimony. We are about to go to court and she is after 75% of my salary! My lawyer has advised me ,that while outrageous, she could win. My question is this: I live and work in Holland, she is the BC resident. After the divorce is final, would Canadian law allow for her to come after me in Holland (for garnishment or whatever)if I was to simply pay her the 45% of my salary that I have been? Is there international jurisdiction in family law matters? Essentially, would the divorce decree be enforceable outside of Canada? Please help, and thanks! (by S of North Vancouver, BC) While child support is relatively fixed, spousal is very flexible. The court will take into consideration both your wife's need (according to certain legal tests) and your ability to pay (according to your income and a few other things). It seems somewhat unlikely that the court would make support orders totalling 75% of your income. As far as your other questions go, yes support orders can be internationally enforced. It is a question of whether Holland is a signatory to an international UN convention on the reciprocal enforcement of support orders. Now, on the assumption that Holland *is* a signatory, enforcing the order will be still be difficult. The most that the convention does is provide a mechanism whereby the order of the court of country A can be registered in the court of country B. Once the order is registered, it becomes enforceable as if it were an order of country B. Ordinarily there will have to be some sort of hearing to "confirm" country A's order. Your wife would have to hire a Dutch lawyer to register the order in the Dutch court and then undertake Dutch collection proceedings to shake the money out of you. It isn't easy. Your first step should be to ensure that the BC settlement or court order is as reasonable as possible. Hire a lawyer here in BC to represent you. Your second step should be to find out whether Holland is a signatory to an international convention on the matter (the UN maintains a pretty good website where you can find out which countries have signed which treaties). Click here to go to the top of the page. My son's wife left him. He offered to leave and leave her with all the furniture, however she decided to leave. She has not looked for work in over a year. Yet they have been in a terrible financial situation. She has helped very little financially over the 8 years of their marriage. Will he still have to pay spousal support, even though she is quite capable of getting a job. She is on welfare. She doesn't cook and she doesn't clean! She likes tv and nintendo. (by K of Chilliwack, BC) The likelihood of someone being obliged to pay spousal support is notoriously difficult to predict. It depends on so many different factors. Firstly, read the section in my website about spousal support carefully. I've listed all of the factors that the court will take into consideration. Your son's situation, based on what you've told me, seems to rest on the question of "needs and means," that is, your son's wife's needs and your son's ability to pay. If he doesn't have a lot of money coming in to begin with, there's less of chance that he'll have to pay a lot in spousal support. Now, his wife's willingness to work has to do with her obligation to become self-sufficient. Unless she's aged or has a disability preventing her from working, she has an obligation to get a job and work towards being self-sufficient. Honestly, I don't know enough about your son's situation to be able to give you any idea as to the strength of his wife's claim and his risk of liability. You should send your son to see a family lawyer in Chilliwack. Click here to go to the top of the page. My boyfriend have been together for almost 7yrs. 3 out of those 7, we have lived together. He recently pays for his first wife every month in which they are seperated and divorced. He has been giving me money for over 6 yrs every month. The phone is in his name, along with this apt, which has another 7mos to go on the lease. The reason for leaving him is he is dishonest, and physical. I wish to leave him but need time to get on my own feet.Would I be able to get continued support from him for a certain amount of time legally? And if yes, what proof do I need to prove my case? (by C of Vancouver, BC) As long as the three years together were the last three, you and your boyfriend qualify as a common-law couple. This brings you within the part of the Family Relations Act which deals with spousal support, and allows you to bring an application for support against your boyfriend. If you wish, you can bring your application before the Provincial (Family) Court; your other option is the Supreme Court. It's less expensive and less complicated of you choose to go to provincial court, and they will help you to fill out the required forms. The Supreme Court, while a lot faster, can be costly and complex. There will be a hearing in either case, and you'll have to prove to the court that you need spousal support and are entitled to receive it. As a common-law spouse, you have exactly the same test to meet as a married spouse does if you are to be granted spousal support. Read the "Spousal Support" section of my website for information on the criteria for orders for spousal support. The section "The Legal Process" will tell you about bringing applications in provincial court. Click here to go to the top of the page. My husband and I separated 2 years ago. We had been together for about 14 years. At the time we lived in the interior. I stayed there with our son and he came down here to a really good job. I have realized that my son should be closer to his father so I moved to Vancouver as well (expensive place!). It is very difficult to do what I do from the city so I am back at university again. He pays child support as per the guidelines, but he doesn't include his bonuses on his income, because he says that I still owe him from the assest division. Is there a case for spousal support here, just for the duration of my schooling? When we were first together I supported him for 2 years through university while I worked. (by D of Vancouver, BC) There is a very good chance that you'd be eligible for spousal support, however the fact that you've been separated for two years before making you claim might make things a bit difficult for you. Firstly, spousal support is generally awarded to help alleviate adverse economic consequences suffered by one spouse as a result of the marriage or it's breakdown. There are lots of other reasons, but this is the big one. You seem to fit this category admirably. You left the interior for Vancouver to allow your husband to take a job. You can't do the work here that you did there so you're now unemployed, plus you now have to bear a much higher cost of living. You're back at school to upgrade your skill set for the Lower Mainland job market. Furthermore, there's no guarantee of a job when you're done with school. All of this happened, you could argue, because you followed your husband so he could get a well-paying job. It certainly sounds like you were economically disadvantaged by both your marriage and its breakdown. Secondly, spousal support is sometimes awarded based on the "needs and means" test: does the payor have the means and does the recipient have the need? If his job is paying him well, he will have the means. If you're unemployed and at school, you definitely have the need. Plus, you wouldn't have the need for support, in all likelihood, if you'd stayed in the interior. I have to add one very important qualification to my answer: you may have trouble claiming support since you separated two years ago. The court will want to know why you need support now after two years and, if you are in such need, why didn't you claim it then? This doesn't entirely undermine you claim, since you have such a strong case in the other respects, however, it will have some impact. Finally, and on an unrelated note, you mentioned that he's withholding support because you still "owe" him from the asset division. The bonuses your husband gets are a part of the income on which child support is assessed. The child support he owes, he owes to your child, not you. It is the child who is entitled to receive support, not you. From my point of view, he can't "punish" you for the asset issue by withholding money he rightfully owes to your child. Your son is entitled to the full amount of child support owing, and his entitlement is unaffected by whatever happened between your husband and you with regard to your assets! Click here to go to the top of the page. My ex wife may be looking for spousal support. I'm currently living with a woman who is very successful. Will her income become part of my total income? Is her income protected? (by D of Canoe, BC) Your question is fairly straightforward. In general, your ex will only be able to claim support against YOUR income, not the combined income of your new family. Why on earth should your new partner have to support your ex-wife? Click here to go to the top of the page. My husband and I were together for thirty years, married for the last twenty. I quit my career path to move to the wilderness with him and raised three children while he worked. Because I do not have the education I should, I am working for a very slim salary at a small school, and glad to have the work because so many teachers are being laid off here. When he left, he took all his work equipment, and left the house to me because it was in my name. Since then, he has sold all his equipment, and he has only offerred to support me for two years. We are both in our early fifties. Should I not expect that he should give me more than two years of support after thirty years of serving him while he worked to increase his income? Will he be able to take my house? (by J of Prince George, BC) Unfortunately your circumstances don't lend themselves to a quick and easy answer. On top of that, you've got a whole pile of issues to deal with. Spousal Support: Spousal support usually depends on whether you have the "need" for support and whether he has the "means" to pay it. If you're working, wonderful... you're self-sufficient. This will, however, undermine your entitlement for support. On the other hand, your long-term self-sacrifice for your husband's career can be compensated by... Asset Division: While the Family Relations Act presumes that family assets should be divided equally, it seems to me that the way to compensate you for the side-lining of your career for the sake of your husband's could be by the reapportionment of the family assets in your favour. In other words, you should ask for more than merely 50% of the assets. That being said, you have another problem in that he's disposed of a fair amount of valuable items! The equipment he sold is a family asset, and, at a minimum you should be entitled to half of the money he sold these things for. Family Home: No, he won't be able to simple take your home from you. On the other hand, he has an obvious interest in the home, and you will either have to buy out his interest or compensate him for his interest in some other way if you'd like to keep it. Most often a couple will sell the family home and split the sale proceeds in some manner. However, you seem to me to have a reapportionment claim, and you deserve to be compensated for his sale of his work equipment. Perhaps this is sufficient to relieve him of his interest. Your case is fairly complex. I strongly encourage you to find a lawyer in your neighbourhood for a proper answer to your question. Click here to go to the top of the page. I have recently seperated from my husband and have started a new relationship. My ex found out about this new relationship is saying that he can take my children from me, refuse me sposal support and whatnot on the basis that he believes I had an affair during the marriage, is this true? (by J of Red Deer, AB) The short answer to your question is this: no. Technically, while you are still married, having sex with someone else constitutes adultery. However, in your case the relationship happened after you separated from you ex. While your actions still constitute adultery, they won't be adultery for the purposes of getting a divorce. Frankly, no one except the pope and your pastor might give a hoot that you had sex with another man after your marriage came to an end an you separated from your husband. As to your husband's threats, whether you had your relationship before your marriage or afterwards has absolutely nothing to do with questions about the care and control of the children or whether or not you're entitled to spousal support. Those are entirely separate questions, to which the question of your relationship has no bearing at all. Click here to go to the top of the page. Site Navigation
Go back to the Q&A Index. Section Menu
The Legal System · Alternatives to Court · Children · Child Support Resources Menu
Site Map & Index · Legislation · Resources & Links · Definitions · Feedback Please ensure you take the time to read these important legal notices. |
|
