Claiming Spousal Support in an Ontario Divorce Application

If you earn less than your spouse, or stepped back from paid work during the marriage, you may be wondering whether support can be dealt with in the same court case as the divorce. In Ontario, it can. The divorce application is the place where you set out what you are asking for.

This article explains how a support claim fits into a divorce application, what the court considers, what paperwork comes with it and how support is treated for tax. It is general information, not advice on your own numbers.

Asking for support in the divorce itself

Either spouse can start a divorce with an application naming the other spouse as respondent, or both can file a joint application with no respondent. Form 8A is the Application (Divorce). Exactly how a support claim is set out alongside the divorce depends on your situation, so it is worth confirming with a lawyer. Anyone who claims support must also serve and file a financial statement.

In a divorce, the court can order the support it thinks reasonable. Only the Superior Court of Justice, including its Family Court branch, deals with divorce and property claims.

If you file a joint application, the divorce and any other order can be made only with both spouses' consent. That makes a joint application a good fit only when you already agree on support.

What the court considers

The court looks at each spouse's condition, means, needs and other circumstances. That includes how long you lived together, the roles each of you played, and any existing support order or agreement.

• Each spouse's condition, means and needs.
• How long the spouses lived together.
• The roles each spouse played during the relationship.
• Any existing support order or agreement.

The court does not consider misconduct by either spouse in relation to the marriage when it decides spousal support. How that applies to your own situation depends on the facts, so it is worth confirming with a lawyer.

Many lawyers and judges use the Spousal Support Advisory Guidelines to help set the amount and length of support, but Ontario guidance describes them as only guidelines. A lawyer can tell you how they might apply to your facts.

Financial statements and honest disclosure

Anyone who claims support or property must serve and file a financial statement. Form 13 is used for a support claim without a property claim, and Form 13.1 is used for any property claim, whether or not support is also claimed. Financial statements must be sworn before a commissioner of oaths, and supporting financial documents must also be provided.

There are exceptions. If the only support claim is child support in the table amount, no financial statement is needed, unless there is also a property claim or a claim for exclusive possession of the matrimonial home. Consent claims for spousal support under the Divorce Act are also exempt under r. 13(8).

You must correct or update any served financial document as soon as you find it is wrong. If a party fails to disclose, the court can order the documents served and must award costs. For failing to obey an order, the court can dismiss a claim or strike out a party's documents.

Uncontested and contested paths

If the other spouse does not file an answer, the divorce is decided on paper, supported by your Form 36 affidavit, which must include financial information. A respondent served in Canada or the US has 30 days to serve and file an answer, and a respondent served elsewhere has 60 days.

If an answer is filed, a judge must hold at least one conference, subject to some exceptions. A case conference explores the chances of settlement and identifies which issues are in dispute, and a settlement conference aims to settle or narrow them.

A person who cannot afford court fees can request a fee waiver.

Tax and other points to know

Support paid under a court order or written agreement is reported on line 21999. Only the deductible part, spousal support, goes on line 22000, and child support is not deductible. Legal fees for a separation or divorce, or for setting support, cannot be deducted on line 22000, 22100 or 23200.

Unmarried partners do not divorce, but for spousal support the Family Law Act treats as a spouse people who lived together continuously for at least three years, or who are in a relationship of some permanence and are parents of a child.

What to do next

• Gather recent tax returns, pay information, bank statements and a list of debts and assets.
• Write down the roles each of you played during the relationship and how long you lived together.
• Decide whether you and your spouse can agree on support, which affects whether a joint application is realistic.
• Speak with a family lawyer before filing, especially if property, children or pensions are also involved.

Frequently asked questions