Am I Entitled to Spousal Support in Ontario? The Eligibility Test

You have separated, or you are about to, and you are asking a simple question: can I ask my spouse for support? Before anyone talks about amounts or how long payments last, there is an earlier question, which is whether you have a right to support at all.

This article walks through that first step in plain language. It explains who can apply, the three recognized grounds, what a court weighs, and why earning less than your spouse is not enough on its own.

Who can ask for spousal support

In Ontario, you may be eligible for spousal support if you meet any one of these descriptions.

• You were married.
• You lived together as a couple for at least three years.
• You were in a relationship of some permanence and had a child together.

Under the Divorce Act, either spouse, or both, may apply for support, and a former spouse counts as a spouse for these provisions. Support is not only for one gender or one role. The person who earns more can also be the one who applies, if the facts support it.

The three grounds for entitlement

Entitlement to spousal support has three possible bases. A claim may rest on one or more of them.

Which ground applies can matter later. For example, a recipient's remarriage or new relationship does not automatically end spousal support, and courts weigh whether the award is compensatory, among other things. Retirement and self-sufficiency can also affect support down the road. How this applies depends on your situation, so it is worth confirming with a lawyer.

What a court looks at

Under the Divorce Act, a court must consider each spouse's condition, means, needs and other circumstances. These include how long you lived together, the roles each of you played, and any existing order, agreement or arrangement about support. Ontario's guidance adds factors such as the income gap, who cared for any children, each person's age, health, and ability to support themselves.

A support order is meant to do four things.

• Recognize economic advantages or disadvantages from the marriage or its breakdown.
• Share the financial consequences of caring for children.
• Relieve economic hardship from the breakdown.
• So far as practicable, promote each spouse's economic self-sufficiency within a reasonable period.

Notice what is missing. Under the Divorce Act, a court may not consider misconduct in the marriage, such as an affair or who left. If you are not divorcing, a lawyer can confirm how conduct is treated under Ontario law.

Why an income gap is not enough

An income gap on its own does not create entitlement. Entitlement must be proven or agreed before the Spousal Support Advisory Guidelines (SSAG) formulas apply. The SSAG are not law, though judges often base decisions on them. They do not decide entitlement, which must first be established under the applicable law.

Two related points often surprise people. First, a result of zero under the formula is not the same as no entitlement. It may simply reflect a current inability to pay, especially where child support comes first. Second, you are expected to make reasonable efforts to contribute to your own support, and a court can impute income, commonly minimum wage, to a recipient who is not doing so.

What to do next

Start by sorting out which ground, if any, fits your story. Then gather the paper that shows it.

• Write a short timeline: when you met, married or began living together, and when you separated.
• Note who stayed home, reduced hours or moved for the other person's career, and for how long.
• Collect tax returns, notices of assessment and pay stubs for both of you, as far as you can.
• Find any separation agreement, written promise or message about support.
• Record your health, age, and any limits on your ability to work.
• Speak with a family lawyer before signing anything or stopping support you already receive.

Frequently asked questions