Spouses acquire mutual obligations to support one another. If a couple marry, they assume this mutual responsibility immediately. If they live together, the responsibility arises only after three years of cohabitation or earlier if they are in a relationship of some permanence and have a child together. Spousal support is determined under the federal Divorce Act if the couple are married and seeking a divorce. Otherwise, in Ontario spousal support is governed by the provincial Family Law Act. The substantive principles are the same in either case.
The goal of spousal support law is to fairly redress the economic consequences of spousal relationships. The length of the relationship, the parties’ financial circumstances and the roles that they fulfilled while together, particularly the raising of children, are all relevant factors. There are three broad models for spousal support: contractual, compensatory and needs based support. These models underlie three separate bases for support. In the contractual model, support is grounded in any express or implied agreement between the spouses to create or limit their mutual support obligations. In the compensatory model, support is designed to compensate a spouse who has suffered economic disadvantages as a result of the marriage or has contributed to the economic advantage of the other spouse. In the needs based model, support is warranted if a spouse is unable to support himself or herself at the end of the relationship without the assistance of the other.
Poor behaviour during the marriage is not relevant to the determination of spousal support. Spousal misconduct, including having an affair, is not relevant to modern support law. There is no legal allocation or recognition of blame for the failure of the relationship. The fact that a spouse has entered into a new relationship does not disentitle a spouse to support although his or her need may be reduced by the resources of the new partner.
There is no limitation to a spousal support claim which can be made at any time after the relationship ends, although the later the claim is made the more difficult it may be to recover against the other spouse.
How much spousal support is owing, if any, and for how many years’ duration, are the most significant questions. There is unlikely to be any spousal support in short term marriages, particularly where there are no children, or marriages in which the parties have comparable incomes. It is possible for a couple to agree in a cohabitation agreement or a marriage contract to waive any claim for spousal support against one another but, if this leads to unconscionable circumstances at the end of the relationship, a court may well set aside the waiver and impose spousal support in any case.
If the parties assume traditional roles in their relationship, with one spouse primarily assuming domestic or child rearing responsibilities and the other spouse primarily acting as breadwinner, then there will likely be spousal support payable. How long spousal support is payable is discretionary but will depend on the length of the relationship and the particular facts of how challenging it will be for the recipient spouse to become self sufficient. If the dependent spouse is older, has little or no attachment to the workforce or is needed at home to care for the children the spousal support may be for an indefinite duration. Indefinite does not mean forever, as spousal support will typically need to be adjusted over time as the spouses’ financial circumstances change. If a spousal support payor loses his or her employment or retires, spousal support may come to an end.
The amount of spousal support depends on the financial circumstances of the parties. The parties are required to exchange financial disclosure of their respective income, budgeted needs and assets and liabilities. In theory the goal of spousal support is to replicate the standard of living during the marriage, however, other than at the highest income levels, this goal is usually impossible to achieve. The Federal government has developed Spousal Support Advisory Guidelines (“SSAG”) to help spouses calculate fair spousal support ranges. There are two SSAG formulas, one for couples without dependent children and one for couples with dependent children. In the latter case, the SSAG are integrated with the Child Support Guidelines. SSAG are based on the parties’ respective incomes, length of marriage, and their ages. The formula generates ranges of spousal support and duration of support. SSAG also generates equivalent capitalized lump sum amounts. SSAG are used as a guide. Courts consider them, but they are not mandatory.