Spousal support, also called alimony or maintenance, is a paid by one spouse to the other to help defray that person's day-to-day living expenses after the relationship ends. Spousal support isn't always payable when a relationship breaks down; there must be a pattern of financial dependance of one party upon the other during the relationship or a need to compensate a dependent party for a loss suffered as a result of the relationship, and the dependant party must be unable to adequately support him- or herself without the other party's assistance.

The basic issue is this: living together is cost effective; living separately isn't. During a relationship, there are one or more sources of income paying one set of household bills. Once a relationship comes to an end, the same amount of income must pay two rent cheques, two hydro bills, two phone bills and so forth. Where one of the parties can't afford to meet these basic living costs or deserves financial compensation for another reason, spousal support will be payable, as long as the other party can afford to pay it.

A. Basic Criteria for the Payment of Support

Broadly speaking, a person claiming support must have suffered an economic disadvantage arising from the relationship or the breakdown of the relationship. Simply having had a relationship isn't enough to establish a claim for spousal support; there must be some sort of economic disadvantage or loss resulting from the relationship.

In a single-earner household, the consequences to the party who isn't employed outside the home are obvious: he or she has no income with which to meet basic living expenses. In a dual-earner household, there may still be a case for support where one party earns substantially less than the other and the relationship was fairly long. Either way, the question comes down to the dependent person's need for financial assistance and the other party's ability to provide it.

A party's obligation to pay spousal support is counterbalanced somewhat by the other person's obligation to try to become financially independent. Unless there is a very good reason why a recipient of spousal support cannot become independent, such as illness, disability or advanced age, the recipient must expect that spousal support will not be paid indefinitely and must take steps to find employment.

B. Types of Support Payments

The goal of spousal support is, in most cases, to help the recipient get by until he or she can achieve financial independence. In the cases of older couples or couples where the dependent spouse suffers from a disability, independence may never be achieved. In other cases, where there are no such barriers to independence, the dependent party will be expected to become self-sufficient in short order.

Spousal support is generally paid periodically, usually once per month, in equal amounts for a fixed amount of time. Where a party is able to become self-sufficient, the payments can be structured to encourage him or her towards self-sufficiency by gradually reducing the amount paid over time.

Spousal support can also be paid in a single lump sum, with or without periodic support payments. Lump sum payments are generally appropriate where the payor has a track record of inconsistency in making his or her support payments, or where a lump sum is what's needed to help the recipient become independent, perhaps for a downpayment on a house or for the purchase of a business. Of course, the payor also has to be able to pay the lump sum.

C. Calculating the Amount of Support Payments

The law on this subject used to try to calculate spousal support by looking and the parties' monthly income and expenses, taking into account factors like:

1. the payor's disposable income and ability to pay;
2. the recipient's living expenses and reasonable needs; and,
3. sometimes the standard of living that the couple enjoyed during their relationship, particularly where that relationship was very long.

For the last several years, however, the court has generally referred to the Spousal Support Advisory Guidelines when making orders about spousal support, once a person's entitlement to receive spousal support has been established.

The Advisory Guidelines sets out a number of formulas that can be used to calculate the amount of support payable and the length of time support should be paid for, with different formulas applying when child support is being paid and when it isn't. While the Advisory Guidelines is not law and isn't going to become law, judges and lawyers routinely consult the Advisory Guidelines when determining spousal support. More information about the Advisory Guidelines can be found in the chapter Spousal Support > The Advisory Guidelines.

D. Spousal Support and Income Tax

Spousal support payments made on a regular, periodic basis are deductible against the payor's taxable income and are taxable income in the hands of the recipient. In other words, the person paying support gets a tax deduction for the payment of support in the same way that you get a deduction for RRSP contributions, while the person receiving support must pay tax on the spousal support he or she receives as if it was employment income or some other form of taxable income.

Lump-sum spousal support payments are tax-neutral: the payor doesn't get a deduction and the recipient doesn't have to declare the payment as income.

E. Spousal Support and the Division of Assets

For married spouses, the court will often consider the question of the division of the family assets before considering whether spousal support ought to be paid and, if so, how much support ought to be paid. Since the goal of spousal support is to enable a spouse to achieve financial independence, it may very well be the case that the division of assets required by the court will meet those needs.

The effect that the division of assets has on a spouse's ability to be self-sufficient should be taken into account regardless of whether the courts are called upon to resolve a dispute or the parties are able to negotiate a resolution themselves.

Back to the top of this chapter.

This segment offers a brief review of the law on spousal support as it applies to common-law couples and must be read together with the section Spousal Support for a proper understanding of the basics of the law on this topic.

Spousal support is available to unmarried partners so long as they qualify as "spouses" under the Family Relations Act. A couple will qualify as spouses if they have lived together in a "marriage-like relationship" for at least two years, as long as any claim for spousal support is brought within one year of the end of the relationship. Unmarried spouses cannot claim spousal support under the Divorce Act, as that act only applies to married couples.

Under s. 1 of the Family Relations Act, "spouse" is defined as follows:

In other words, you must have

1. lived together...
2. ...in a "marriage-like relationship"...
3. ...for at least two years

to qualify as a "spouse" for the purposes of an application for spousal support, and you must

4. bring that application within one year

of separating from your partner. If you don't meet these criteria, your claim for spousal support will be dismissed.

The law on this subject is the same for same-sex common-law couples as it is for straight common-law couples. Where an entitlement to receive spousal support is found, common-law couples can also use the Spousal Support Advisory Guidelines to calculate how much support should be paid and how long support should be paid for. See the chapter Unmarried Couples > Common-Law Relationships for more information about qualifying as a common-law couple and the chapter Spousal Support > The Advisory Guidelines for more information about the Advisory Guidelines.

Back to the top of this chapter.

This segment offers a brief review of the law on spousal support as it applies to married couples and must be read together with the section Spousal Support for a proper understanding of the basics of the law on this topic.

Spousal support is available to married couples under both the Family Relations Act and the Divorce Act.

There is no time limit within which a claim for spousal support may be brought under the Divorce Act, as the act defines "spouses" as people who are married to one another and people who used to be married to one another; an ex-spouse will always be an ex-spouse entitled to claim spousal support. Similarly, there is no minimum length-of-relationship test that must be met to claim spousal support, you simply need to been married to the person from whom you are seeking support, whether for one day or ten years.

The law which applies to gay and lesbian spouses is identical to that which applies to straight couples; see the section Spousal Support for a lot more information.

Back to the top of this chapter.

Section Menu

The Legal System · Alternatives to Court · Children · Child Support · Spousal Support
Family Assets · Family Agreements · Marriage & Divorce · Unmarried Couples
Other Family Law Issues

Resources Menu

Site Map & Index · Legislation · Resources & Links · Definitions · Feedback
How do I ? · About the Author · Reviews & Write Ups · Help!

Please ensure you take the time to read these important legal notices.

Terms of Use · Copyright Notice · Disclaimer · Privacy & Confidentiality · Press Kit

Copyright © 2001-2010 John-Paul Boyd. All rights reserved.