The power of the Court to award spousal support is derived from the obligation of each spouse to support the other spouse based on the need of the other spouse and the payor’s ability to do so. The Divorce Act of Canada and the Family Law Act of Ontario address issues related to claim for spousal support.
Claim for spousal support may be brought by both married and unmarried parties, during the divorce proceeding, or after it.
Spousal support may be awarded by way of periodic payments, or, in limited circumstances, as a lump sum. It is important to remember that periodic spousal support is tax deductible for the payor and taxable in the hands of the recipient, while lump sum spousal support does not have those tax consequences.
In order to award spousal support the Court will have to examine the facts of the parties to satisfy the two step analysis. The first step is establishing entitlement of the applicant to spousal support. Only if the entitlement is established, the Court will examine means of the payor and needs of the recipient. The Court then determines the appropriate amount of spousal support.
Unlike with child support determination, the Court does not have an easy formula to determine the amount of spousal support. Recently, the Spousal Support Guidelines were introduced to help the Courts to come to a decision regarding the amount of spousal support and duration of it in each case.
The Spousal Support Guidelines are advisory and they provide a range of the amounts of spousal support from low to high, and duration of spousal support. It still is in the Court’s discretion to award the amount above or below the recommended amounts or for a different duration of time. While the Court is usually obliged to provide its reasons if the amount of child support deviates from the Table amount, there is no such requirement for deviation from the Spousal Support Guidelines’ recommendations.
Spousal support may be ordered for a term, but may also be awarded indefinitely, especially in cases of long term traditional marriages. Even if there is an indefinite award of spousal support, the final Order may still be changed by making a Motion to Change a Final Order, if circumstances so warrant.
