Spousal Support
When a couple separates or divorces, one spouse may be required to pay the other spouse financial support for a certain amount of time. This is true for both married couples and common-law couples, with certain caveats. A common-law couple can ask for support if they have registered their relationship with the Vital Statistics Agency, they have lived together for at least one year and have a child, or they have lived together for at least three years and do not have a child. When dealing with support for former common law partners, the technical term is "common law partner support." However, for the purpose of this article we will refer to spousal support generically to cover in broad terms support paid by one person to his or her former partner. In the past, such payments used to be called alimony, but that term is no longer used in the law.
The federal Divorce Act applies to spousal support for married couples. Because the act is federal, it applies in every province in Canada. Provincial law, specifically the Family Maintenance Act in Manitoba, applies to married couples who are separating, not divorcing, and to common-law couples. The provincial and federal legislation are similar but not identical and they set out different criteria for entitlement, duration of support, quantum of support and the duty for become self-sufficient. In addition, the case law composed of judicial precedent is constantly evolving and interpreting the legislation.
Some Factors That the Court Wil Consider
The court looks at several factors when determining if spousal or partner support will be ordered. These factors include the financial needs and means of each partner, the length of the relationship, the roles that each person played in the relationship, and the effect of those roles on the couple's current financial situation. For example, if a couple has been married for 20 years and one partner stayed home and raised the children and the other partner worked, it would be difficult for the partner who did not work to find employment after the divorce or separation. Additionally, one partner could have sacrificed his or her career in order to raise children or manage the household. The court will take that into consideration when making a decision regarding spousal support.
Factors That the Court Will NOT Consider
Two factors that the court will not consider when determining whether to order spousal support are adultery and marital misconduct. So the question of whether someone cheated or if they were at fault for the separation is completely irrelvant. Because Canada has a "no fault" divorce system, these factors are not considered regarding spousal suport. There are Spousal Support Advisory Guidelines (SSAG) that the judge can utilize, but these guidelines are not binding. The court can order support on a case-by-case basis depending on the factors and circumstances of each couple. However, the court will generally rely on the SSGA when making its decision.
Couples can reach an agreement outside of court as to spousal or partner support. The court will usually not deviate from that agreement unless (1) the debtor has failed to make the payments, (2) the maintenance payments were not adequate for the parties' circumstances when the agreement was made, or (3) the dependent partner is now receiving or needs government assistance.
It is up to the court to determine how long one spouse will have to pay support to the other spouse. For a long relationship where the couple has children, the court will often not put an end date on the spousal support. This does not mean that the spousal support will last indefinitely. Rather it will continue until one party experiences a material change in his or her financial circumstances, i.e. retirement or remarriage, which necessitates the court to revisit the issue. Some courts will issue a "review order", which states that the spousal support will be reviewed in a certain number of years.
Tax Considerations
Spousal support is usually tax deductible to the payor and is considered income for the recipient. However, the payor can only claim this tax deduction if he or she is current on all child support payments, if any. Tax rules are complicated and subject to frequent changes. Anyone paying or receiving spousal support should check with a professional tax preparer or accountant to ensure that they are in compliance with the tax rules and claiming the appropriate income or deductions. Depending on the tax bracket of the spouse paying the support, the tax savings can be considerable. Similarly, the person receiving spousal support has to plan ahead and set aside money to pay the taxes that will be levied on the support that he or she receives. Unlike spousal support, child support is not taxable.
In certain situations, the court will grant temporary spousal support during the couple's separation but before the divorce. The court will make a quick determination of this amount, but it will be revisited during the divorce proceedings to take into account all evidence of the couple's financial situation.
There have been longstanding criticisms of spousal and partner support. Many state that the system is sexist in favor of women. Historically, spousal support has been issued with the husband as the debtor and the wife as the recipient. However, that was likely due to the fact that women traditionally stayed home while their husbands worked. Today, that is no longer the case in many situations. It is now typical for both partners in a relationship to work, but it is still the case that one of former spouses may be disadvantaged by the relationship or its breakdown and require spousal support. Additionally, the SSGA were carefully devised to not favor men or women. It offers an unbiased formula based on income. However, the Spousal Support Advisory Guidelines are not binding on the court and they provide only a reference guide showing a range that may be appropriate in the circumstances.
General Information Only
This article provides general information only and does not constitute legal or professional advice. Each situation is different. Determining whether a person is or is not entitled to spousal support and for how long, as well as the amount of support that should be paid involves a complex balancing of multiple factors. If you are separating, you should contact a lawyer to discuss your rights and obligations.