An Overview of Key Spousal Support Issues
It’s no secret that spousal support is one of the more difficult issues in a separation, divorce or family law case.
A parent is entitled to get child support from the other parent if the children live with one parent most of the time.
However, you might also have to pay spousal support to your former spouse or you could be entitled to receive spousal support depending on the facts of your case.
When you have been living with a spouse for a number of years, Ontario family law recognizes the contribution of the spouse with the lower income to the marriage or common-law relationship.
Obviously you want the help of a lawyer with a proven track record in family law to ensure you pay the right amount of spousal support or you get the proper amount of spousal support. After you come to your consultation with Thomas O’Malley, a very experienced family law and divorce lawyer, you will know exactly about your rights and obligations for spousal support in your particular case.
Call his office today at (905) 434-8837 to schedule an initial consultation. You get solid family law advice and peace of mind when you need it most.
Factors That Determine Spousal Support in Ontario
Ontario family law courts examine these factors to determine whether a spouse should get spousal support:
- Will spousal support help a spouse become financially sufficient through re-training or educational courses?
- Is spousal support required so that a spouse can maintain a reasonable standard of living comparable to the standard of living that the spouse had during the marriage or common-law relationship?
- Will a spouse suffer serious financial consequences as a result of the breakdown of the marriage by giving up a career or not pursuing promotions and other financial benefits to help the other spouse’s career or job?
- The longer the marriage or relationship and the greater the difference in income between the spouses, the more likely you will have to pay spousal support to your former spouse.
Spousal Support Advisory Guidelines
The Ontario family court pays close attention to the Spousal Support Advisory Guidelines to determine the actual amount of spousal support payable in any particular case. These Guidelines produce a low, medium, and high figure for spousal support. This calculation also takes into account the amount of child support that must be paid in your case.
Another important issue is the length of time that you might have to pay spousal support. Your lawyer should carefully discuss this issue with you.
The Spousal Support Advisory Guidelines also provide a range for the length of time that a spouse should pay spousal support to the other spouse.
You should also remember that you must pay income tax on any spousal support that you receive and that you get an income tax deduction when you pay spousal support to your former spouse.
How to Get Answers to Your Spousal Support Questions
The truth of the matter is you need the help of an experienced family law and divorce lawyer to protect your legal rights on the important issue of spousal support in your case.
When you come to your initial consultation with Thomas O’Malley, you get the hard-won legal advice and details you want and need to protect your family law rights in your separation, divorce or family law case. Everyone who sets up a consultation with Mr. O’Malley enjoys the peace of mind that they have a skilled family law lawyer watching out for them.
There’s simply no substitute for his more than 26 years’ experience of protecting the family law rights of his clients both in and outside family court.
Contact Thomas O’Malley today at (905) 434-8837 to set up your initial consultation. Don’t put it off. You can also get important information by reading this article on how to work with an experienced family lawyer to protect your legal rights.
How Spousal Support Works
One of the most disputed areas in a break up is the issue of spousal support. Spousal support means the money that one spouse pays to another spouse so that this spouse can maintain a certain lifestyle.
Spousal support is quite different than child support. Whereas the purpose of spousal support is to ensure that a spouse can live and maintain a certain lifestyle, the purpose of child support is to pay for the lifestyle of the children, including clothing, food, and living accommodations for the children.
Purpose of Spousal Support
The Supreme Court of Canada recently explored the whole issue of the purpose of spousal support in Canada. The Supreme Court of Canada explained that there are two models of marriage: the independent, clean-break model of marriage and the mutual obligation model of marriage.
According to the independent, clean-break model of marriage, the husband and the wife are viewed as autonomous, independent people who retain his or her own economic independence throughout the marriage. The spouses, while they “formally” commit to each other for life at the time of their marriage vows, regard themselves as free agents in a relationship that either the husband or wife can end on their own action.
Based on this model of marriage, the payment of compensation to a spouse after the relationship has ended to pay for any financial or economic loss that a spouse has suffered during the relationship is the purpose of spousal support. The payment of spousal support in these circumstances will permit a spouse to move on with his or her life.
The second model of marriage is the mutual obligation model of marriage. This model views marriage or the relationship as a union that creates interdependencies between the spouses that cannot be easily unraveled or disconnected.
This model of marriage recognizes the reality that when people cohabit or live together for a period of time in a family relationship, their affairs may become intermingled and very difficult to disentangle neatly. When this happens, it is not unfair to ask the partners to continue to support each other.
This model of marriage also recognizes the false assumption that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support after the marital break.
The Supreme Court explained that neither model of marriage can deal with every type of marriage and relationship that a husband and wife may have. The Supreme Court stated:
Neither [model of marriage] is alone capable of achieving a just law of spousal support. The importance of the policy objectives serviced by both models is beyond dispute. It is critical to recognize and encourage the self-sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships. On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration.
The federal Divorce Act sets out the objectives that a court should try to accomplish when the court makes an order for the payment of spousal support. These objectives are (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child support; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self-sufficiency of the spouses.
The courts have stressed no single objective takes priority over the other objectives.
The court must look at certain factors against the background of these objectives when it makes a spousal support order. The court must look at the condition, means, needs and other circumstances of each spouse. The court will consider the length of cohabitation or the number of years that the husband and wife were married and lived together, the functions each spouse performed, and any order, agreement or arrangement involving spousal support.
These are the factors that a court will consider in both cases of married partners and partners who live in a common law relationship.
Entitlement to Spousal Support
Whether or not someone is entitled to obtain spousal support is no longer really an issue in Ontario family law. The fact that two people have been married or lived together for more than the briefest period will probably entitle a person to spousal support.
The only true issues in a case of a spousal support are the amount of spousal support and the length of time that spousal support should be paid or the duration of spousal support.
The Supreme Court of Canada in the famous Bracklow case has basically stated that a trial judge has discretion to determine the amount of spousal support and the duration of spousal support. The Supreme Court of Canada clearly stated:
The parties segregate entitlement and quantum for purposes of analysis in their submissions on how the Court should exercise its discretion. While I am content to deal with the case in this manner, it must be emphasized that the same factors that go to entitlement have an impact on quantum. In terms of the underlying theories there is no strong distinction. The real issue is what [spousal] support, if any, should be awarded in the situation before the judge on the factors set out in the statutes.
The Supreme Court did not provide any guidance about how to balance the various objectives to be met when a court awards spousal support to a person.
However, the courts now pay a lot of attention to the Spousal Support Advisory Guidelines for guidance in determining the amount of spousal support that a spouse should receive in their family law case.
Spousal Support Paid on the Basis of A Spouse’s Financial Need
The bottom line is that most spouses who have financial need after a separation or divorce will probably get spousal support. The question is simply how much spousal support and for how long.
Spouses who suffer from an illness or disability will usually get spousal support.
Spouses who have very limited or non-existent incomes at the date of separation for any reason, including age, lack of education and skills, loss of employment because of shifts in the labour market, will in many cases get spousal support. Generally, the simple fact that a spouse is unemployed will entitle the spouse to spousal support.
A spouse will generally get spousal support if the person has suffered a significant drop in their standard of living. A spouse can get spousal support even if the person has worked during the relationship as long as the person’s income is lower than the other spouse’s income.
When a relationship has lasted seven years or more, a court will usually award spousal support on an indefinite basis. The court will not put a time limit on spousal support in this situation. In fact, in many cases, the court has awarded spousal support on a permanent basis.
Spousal Support Paid On The Basis of Her Contribution
To The Relationship or Marriage
The court will base spousal support on a finding that a spouse has made a contribution to the relationship or marriage.
In a recent case, the trial judge awarded the wife $1,000 per month in spousal support so that she could maintain the marital standard of living when child support and her own income were taken into account.
A higher court awarded an additional $500 per month in spousal support to the wife to recognize her contribution to her husband’s business success after the separation since she remained home to care for the children and he could devote more of his time to his work.
How Long Does A Spouse Have To Pay Spousal Support?
A court will not normally order time limits on spousal support in Ontario.
The husband and wife in one case were married for almost 13 years at the time of the separation. They had two children who were seven and four years old at the date of separation. The husband was a successful lawyer with an income of $240,000 per year.
The wife only had a Grade 12 education. She had previously worked several secretarial jobs. Her highest income was $27,000 a year as a secretary. The wife was a full-time mother and homemaker since the birth of the oldest child. The trial judge ordered the husband to pay spousal support for five years and then spousal support ended forever.
The Ontario Court of Appeal refused to put a final time limit on the payment of spousal support in this case. The Court of Appeal explained that the children were currently 11 and 9 years of age and that the mother would have to continue to supervise them until the children were in their late teens.
The Court of Appeal stated that the goals in this case must be to encourage the wife to become self-sufficient and still recognize that the wife required spousal support for some time in the future. Therefore, the Court of Appeal concluded that the husband had to pay spousal support for 10 years. At that time, the husband could apply to court to reconsider the wife’s entitlement to spousal support and any continuation of this support.
The Court of Appeal had made it very clear that trial judges in Ontario should not impose time limits on spousal support and that they could make review orders in spousal support cases.
What exactly is a review order in a spousal support case? Under a review order, either the husband or the wife can return the issue of spousal support to court at a specific time. A court will review the entitlement to spousal support, the form, and the amount and the length of time of spousal support. The court will examine the issue of spousal support at that time on a fresh or new basis. A husband or wife does not have prove a material change in circumstances to deal with spousal support.
A material change in circumstances is a higher standard that a spouse must meet to change a spousal support order. In a review order, the court will look at the facts on a fresh basis and decide whether the other spouse is entitled to spousal support, the amount and length of time for spousal support.
Review orders, however, are not made in every case. The court will make a review order when there is a concern about the spouse’s failure to make reasonable efforts toward getting employment sufficient to give the spouse a reasonable standard of living or clear expectation of a change at a particular point in the future.
How To Get Reliable Legal Advice About Spousal Support Issues
in Your Separation or Divorce
Just imagine the serious headache of trying to figure out your spousal support issue without the help of an experienced family lawyer.
But the most important thing is that you don’t even have to give that worry a second thought.
When you come to your initial meeting with Thomas O’Malley, you’ll understand exactly what you have to do to get good results in dealing with your spousal support issue.
Call his office now at (905) 434-8837 to get started on protecting your family law rights. There’s no better time than the present.