Spousal Support in Ontario
Ontario
For married spouses in Ontario, the Divorce Act provides that a court of competent jurisdiction can order a spouse to pay support to another spouse.
In Ontario, the Family Law Act also says that:
30. Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
The FLA also says that:
(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
In Ontario, as I mentioned above, you generally cannot avoid paying support to a spouse who has an entitlement, because of his or her past conduct. The rare cases where you can, are those where you can prove that the “conduct … is so unconscionable as to constitute an obvious and gross repudiation of the relationship.”
Don’t get your hopes up, though–cheating on a spouse is not a “gross repudiation of the relationship.”
Just as in Ontario, in BC, the Divorce Act provides that a court of competent jurisdiction can order a married spouse to pay support to another spouse.
In BC, the Family Law Act says:
161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;
(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
Just as in Ontario, don’t think you’re going to get out of paying spousal support because your spouse cheated on you. The FLA in BC forbids judges from considering “misconduct” when making a spousal support order “except conduct that arbitrarily or unreasonably
(a) causes, prolongs or aggravates the need for spousal support, or
(b) affects the ability to provide spousal support.”
Only a “spouse” can receive spousal support.
You do not need to be divorced to get spousal support but judges will not order a spouse to pay spousal support to another spouse unless they are separated.
Unlike child support, though, not every spouse is entitled to spousal support.
The first question spouses need to ask, therefore, is: do I have an entitlement to spousal support?
In both Ontario and BC, there are three “grounds” that can produce an entitlement to spousal support:
- contractual
- compensatory, and
- non-compensatory
The first, “contractual”, means that the spouses have signed an agreement that if they ever separate, one will pay the other spousal support.
The second, “compensatory”, means that one spouse has made some sacrifice in order to contribute to the relationship, and he or she must be compensated for that sacrifice.
The third, the so-called “non-compensatory” category, is really a bit of a “catch all” category. Many people suggest it means “needs based” support–even if neither spouse made any particular sacrifice for the relationship, one of them may have a financial “need” for support from the other.
(The word “need” is in quotes because often what courts find to be a “need” is very different than what you might imagine. It goes far beyond basic food and shelter needs.)
Note that in both Ontario and BC, “past conduct” generally does not affect a spouse’s entitlement to support. Cheating on your spouse (or her cheating on you) is legally irrelevant in almost all cases. So is just generally being a jerk.
If you can establish an entitlement to spousal support, then the next questions are: how much and for how long?
Typically people pay spousal support each month, just like child support. Often there is a fixed time after which they no longer have to pay spousal support. In some cases, though, such as very long relationships, or where a spouse is disabled, a spouse may pay spousal support “indefinitely.”
Each province’s FLA has some wording explaining what judges should consider when deciding how much support to order and for how long.
Most people and most judges use the Spousal Support Advisory Guidelines to answer the “how much and how long” questions, though. While they are not law, the SSAG are very persuasive and you have to have a good argument to get judges to ignore them.
The SSAG generate ranges for both amount and duration of spousal support. Generally, spouses pay the “mid-range” of the amount.
If the information on this site doesn't answer your question, you can book a free, no obligation consultation in Toronto about your divorce and family law rights in Ontario and BC.