Do I qualify for support?
Under the Divorce Act, a “Spouse” qualifies for support; and a “spouse” under this legislation is defined as either a man or a woman who is or was married.
However, being married does not necessarily automatically entitle a “spouse” to support.
Do I qualify if I was never legally married?
Under the Family Law Act, a “spouse” or “same sex partner” (partner) can apply for spousal support.
The Family Law Act extends the definition of “spouse” to mean:
- a man or woman who are married or have entered into a marriage that is voidable or void;
- a man or woman who are not married but have continuously lived together for at least 3 years;
- a man or woman who have lived together in a relationship of some permanence, if they are the natural or adoptive parents of a child;
How is the amount of spousal support determined?
According to the Supreme Court decision in Moge v. Moge spousal support is decided under the Divorce Act by a court taking into account the following factors:
- the condition, means, needs of each spouse;
- the length of time spouses lived together;
- what effect the marriage had on each spouses economic prospects;
- the functions performed by each spouse while living together;
- any order, agreement, or arrangement relating to support of either spouse;
- any misconduct by either spouse in relation to the marriage;
- ensuring a fair and equitable distribution of money and assets between the spouses;
Under the Family Law Act, spousal support is determined by the following:
- looking at what each spouse or partner contributed to the relationship
- looking at the economic consequences of the relationship for each spouse or partner;
- ensuring a equitable sharing of the economic burden of raising a child or children;
- ensuring that each spouse or partner is able to support themselves after a relationship breaks down;
- ensuring that any financial hardship suffered by either spouse or partner because of the breakdown of the relationship is relieved
The ultimate goal of spousal support under both the Divorce Act and the Family Law Act is to relieve any hardship faced by a “spouse” or “partners” because of the breakdown in a marriage/relationship.
Does spousal support continue indefinitely?
In Ontario, the Ontario Court of Appeal has ruled in cases such as Kent v. Frolick that the trend is going away from time limited support orders.
The Ontario Court of Appeal further stated that time limited support orders should only be awarded in cases where there are unique circumstances.
What are the objectives of spousal support?
A spouse or partner must be able to demonstrate to the court a “need” for spousal support.
A court determines “need” by considering:
- the role of the spouses or partner during the marriage/relationship;
- the different roles of assumed by each of the spouses or partners during the breakdown of the marriage/relationship;
- any express or implied agreement or arrangements between the spouse’s or partner’s during the marriage/relationship;
- whether there the spouse’s or partner’s require a compensation for lost economic opportunities arising from being married or in a relationship;
- whether a spouse can survive on there on without support from the other spouse or partner
In short, spouses or partners may now be obliged to pay spousal support to the other if they have the capacity to do so even if there was no express or implied agreement or the other spouse or partner does not require compensation.
Can spousal support orders be varied?
A court will vary spousal support order if there has been a material and significant change in circumstances that have occurred to the parties between the time the order was made and the time a spouse or partner requests a court to change the order.
The courts will entertain a variation in a spousal support order if:
- either of the spouse’s or partner’s economic condition has changed;
- either of the spouse’s or partner’s have lost their job;
- either spouse or partner has received unanticipated income;
- either spouse or partner has unexpectedly lost income;
- serious inflation has occurred;
- either spouse or partner has received a significant promotion;
- either spouse or partner has suffered a change in there health;
- evidence relevant to spousal support is presented to a court that was not presented when a spousal support was originally made.
Even if a spousal support order says the order is final a court can review a spousal support order.
Does Remarriage end spousal support?
The Supreme Court ruled in Willick v. Willick and L.G. v. G.B. that remarriage by either the paying spouse or partner or the recipient spouse or partner does not automatically trigger the termination of spousal support.
How do I collect spousal support if my former spouse or partner refuses to pay?
Spousal Support Orders can be enforced one of two ways:
- a spouse or partner can return to the court that made the order and request that the court enforce the order and take steps to collect the arrears; or
- a the recipient spouse or partner under the Family Responsibility and Support Arrears Enforcement Act can file a court order with the Director of the Family Responsibility Office;
Either one of these steps will result in the income of the paying spouse or partner being garnished or there assets being liquidated to pay for spousal support.