Spousal support is a contribution from one spouse to another spouse to assist in payment of living expenses.  Both married and unmarried spouses may make a claim for spousal support.  The definition of spouse includes persons of the same gender.

Married Couples

Married couples can claim support under the provincial Family Relations Act or the federal Divorce Act. 

Under the federal Divorce Act, there is no limitation period for bringing a spousal support application.  A claim under the provincial Family Relations Act for spousal support may be brought during the marriage, or within two years after the parties are divorced.

Unmarried Couples

Unmarried couples are limited to claiming spousal support under the Family Relations Act.  In order for an unmarried spouse to claim spousal support, he or she has to have lived in a “marriage like” relationship for at least two years and apply for support within one year after the couple stopped living together.

Principles that apply to spousal support

After marriage breakdown, the law provides that spousal support should, in so far as practicable, promote self sufficiency within a reasonable time.  The courts do not see marriage as insurance for spousal support.  Spousal support is not paid as a right, and the payment and amount of spousal support will depend on the particular circumstances.  When making an order for spousal support, the courts will not consider any misconduct on the part of either spouse.

When deciding the issue of spousal support, the courts take into account the “condition, means, needs, and other circumstances” which may include the following:

• length of the marriage/cohabitation;
• functions performed by each spouse;
• other agreements or arrangements for spousal support;
• economic circumstances including economic disadvantages arising from the marriage or marriage breakdown;
• any other sources of support; and
• the ability and capacity of a spouse to be self sufficient. 

The duration and amount of support will depend on the circumstances.  Spousal support may be ordered for a limited time or indefinitely.  Ultimately each case will turn on its own facts.

Spousal Support Advisory Guidelines

The Spousal Support Advisory Guidelines (“SSAG”) is a draft proposal which attempts to generate a mathematical formula for the range of court outcomes for the quantum and duration of spousal support.  The aim of the SSAG is to bring more certainty and predictability to the determination of spousal support.  Although they are in draft form, courts across the country are applying the guidelines in conferences and formal hearings. 

Note that the SSAG only does not determine entitlement to spousal support; they operate only when entitlement to spousal support is found.

The SSAG propose two basic formulae, one where there is no child support being paid and one where child support is being paid.

Variation of spousal support

Where parties have agreed to spousal support in an agreement, the courts typically try to uphold the agreement where it was entered freely and with appropriate legal advice.   The Supreme Court of Canada has held, with limited exceptions, that parties should be bound to their agreements.

Where a party seeks to vary a spousal support order or an agreement, they must show that there has been a change in circumstances.  The threshold for change in circumstances is whether there has been an unforeseen change in needs, means, and the economic circumstances from when the original order was made.

Taxation of spousal support

Periodic payments of spousal support are tax deductible to the payor and taxable income to the recipient.  Lump sum spousal support payments are neither deductible nor taxable.