What is Spousal Support?
In Ontario family law a marital relationship is often considered as an economic partnership. Many a times in a marriage one spouse or the other may suffer an economic disadvantage, such as giving up a job, in order for the welfare of the relationship or family such as taking care of the children. Therefore, in certain cases of divorce Ontario family law may require the spouse with the higher earning capacity to make a monthly or lumpsum payment to the spouse with the lower (or no) income capacity in order to enable them to “get back on their feet”. This is known in Ontario as ‘Spousal Support’, and in some other jurisdictions as ‘alimony’.
When is Spousal Support paid?
Spousal Support is not an automatic payment owed upon marriage and a subsequent divorce, in order to claim spousal support, the claimant must prove ‘entitlement’ to the payment. ‘Entitlement’ is a fact-based determination which may vary from case to case, nevertheless in order to determine entitlement to spousal support, the following factors are considered:
- the length of the marriage or common law relationship
- Each spouse’s role in the marriage or common law relationship
- The age of the spouses at the time of separation
- The ability of the claimant spouse to be self-sufficient; and
- The ability of the other spouse to support or pay Spousal Support
It is important to note that spousal support is not a moral determination and is not affected in any way by the moral behaviour of either spouse such as domestic violence or abuse, adultery, cruelty etc. It is solely based on entitlement and if entitlement doesn’t exist the mere existence of an income disparity does not make a spouse automatically liable to pay support (Berger v. Berger ). Nevertheless,provided that entitlement is found to exist, it may in certain cases be granted retrospectively, that is to say that it can be claimed depending upon the facts of the case for a period of time after separation or divorce where it was not claimed or received previously. It can also be subject to variation after a spousal support order has been made upon the change of circumstances of the spouse, however this change in circumstances must be ‘material’ in order to gain a variation or change in the spousal support payment.
How is the amount and length of Spousal Support calculated?
In 2008, the Federal Government published an advisory document known as the Spousal Support Advisory Guideline which sheds light on the matter of calculating the amount and length of the spousal support. It is important to note however that the Spousal Support Advisory Guideline is not legally binding on judges when making a spousal support judgment but merely serve as a guiding information when dealing with the complex issue. It provides a number of factors which are considered, the use of a reputable Family Law or Divorce Lawyer such as the Family law lawyers at Mehdi Au LLP is recommended. Once the calculation has been done according to the Spousal Support Advisory Guidelines a low, middle, and high range of Spousal Support amount is obtained, whereby after the consideration of the Courts a decision based on the facts and circumstances is given. Additionally, relatively simple calculations can be made by visiting www.mysupportcalculator.ca, however it is important to note that the website only factors in the income of each party. Therefore, in order to get a more thorough and complete assessment the services of a reputable Family law or Divorce lawyer are recommended. At MEHDI AU LLP we have lawyers on staff who can assist you in your Family matter.
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