In order to claim spousal support, it must first be established that the person making the claim qualifies as a spouse pursuant to family law. In family law, spouses are:
Family law in Ontario applies equally to same sex spouses and parents with respect to support.
Once spousal status has been established, the next step is to establish entitlement to spousal support based on the factors set out in the law which include but are not limited to:
After entitlement has been established, the next step is to determine the quantum of support and if possible, the duration of support.
With respect to the quantum of support, while not binding, the Spousal Support Advisory Guidelines (SSAGs) are used most often to determine the amount of support and provide a range of support (Low, Mid, High) based on factors including: the length of the relationship, the ages of the spouses, the children of the relationship (if any), and the incomes of the parties. Determining where the amount of support falls within the range provided is based on the factual circumstances of each case, including current circumstances as well as the history of the relationship, particularly in cases of compensatory support. It is also possible for the Court to order or for parties to agree on an amount of support that is outside the range of support provided by the SSAGs.
The SSAGs also provide a potential duration of support. It is more likely that a termination date for support is to be agreed upon or ordered in relationships of short duration without children; however, it is possible in every case. Rather than a fixed termination date for spousal support, spouses may agree or the Court orders a review date for support instead.
Spousal support may be paid on a periodic basis (such as monthly), or by way of a lump sum payment or payments.
Periodic spousal support payments are usually taxable to the recipient in the year received and deductible by the payor in the year paid.
One-time lump sum payments of spousal support are tax free payments for which the payor gets no deduction and the recipient pays no tax. This can be a significant benefit to the recipient. Often, although not necessarily, spouses pay lump sum spousal support in exchange for a spousal support release which is supposed to protect the payor from any future claims for support; however, even in the face of spousal support release, the Court may still order that spousal support be paid.
Parties may have an informal or written Agreement regarding support payments and often they make support payments directly, or make other arrangements for support.
Although support can be paid through a variety of methods and without formal enforcement, it is important to keep records of all support provided as it may be necessary to prove it at some point.
All Orders for child and/or spousal support must be enforced by the Family Responsibility Office, commonly referred to as “FRO”, at least initially. If an Order is made for child or spousal support, information about the support recipient and support payor must be provided to FRO. Parties may withdraw from FRO enforcement provided that both the payor and the recipient execute and file a Notice of Withdrawal with respect to FRO enforcement.
Written Agreements in relation to child and/or spousal support may also be enforced by FRO if a copy of the Agreement is filed with the Court. Once an Agreement regarding support has been filed with FRO, parties may also file a Notice of Withdrawal to stop FRO from enforcing support and an order or Agreement may be re-filed with FRO even after the recipient and payor withdraw from FRO enforcement.
If you have any questions about spousal support and how we can help you, please reach out to us.
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