Spousal support is governed by both provincial legislation, the Family Law Act, and federal legislation, the Divorce Act (Canada). Those parties who are in common law relationships, which are defined as relationships in which parties have lived in a marriage-like relationship for at least two years or living together for less than two years but had a child together, must apply for spousal support under the Family Law Act. Parties who are married can apply under either or both of the Family Law Act and the Divorce Act.
Those applying under the Family Law Act must apply for spousal support within two years of the date on which the parties separated in the case of common law spouses, and within two years from the divorce in the case of married spouses. There is generally no time limit for apply for spousal support under the Divorce Act, however it is more difficult to vary spousal support if the application to vary spousal support is made after a termination date set out in a court order has been reached.
Spousal support is intended to:
- recognize any financial advantages or disadvantages faced by the parties as a result of the relationship or the separation;
- ensure that neither spouse faces undue economic hardship as a result of the separation or divorce;
- ensure that both parties share the costs associated with any consequences to caring for children during the relationship, and
- assist each spouse in becoming financially self-sufficient within a reasonable amount of time.
Parties can choose to resolve the issue of spousal support by agreement or by court order, which can include both past and future support. Before parties can enter into any agreement or can obtain any court Order with respect to spousal support, it is desirable, and often necessary that each party provide financial information to the other.
With respect to how much spousal support will be or for how long payments will be made, individuals and the Courts often consider the Spousal Support Advisory Guidelines. The Spousal Support Advisory Guidelines or “SSAG” for short, provide individuals as well as the Courts with a suggested range of spousal support, both in terms of the amount of spousal support payable and the duration for which the paying spouse will provide spousal support payments.
It is important to note that periodic spousal support is taxable income to the spouse receiving it and tax deductible to the spouse paying the spousal support. This is not the case where the spousal support is paid on a lump sum basis.
If there is already a court Order or a written agreement for spousal support and past support has not been paid by the payor spouse, the spousal support payments are considered in arrears. Parties can apply to the Courts to have arrears paid and in certain situations, to have arrears reduced or cancelled depending on the circumstances. It is also possible to have the Director of Family Maintenance Enforcement, enforce the payment of arrears of support at no cost to the person seeking enforcement of support. There are other methods available to enforce payment of support.
We have extensive experience representing parties in spousal support matters. Our experience includes dealing with disagreements about the incomes of either party and whether income should be imputed to a party, determining the incomes of parties who are self-employed or control a corporation or a business, ongoing and retroactive spousal support, tax matters that relate to spousal support, and reviews of spousal support. We will also collaborate with experts such as accountants when necessary.