Divorce Act vs Family Law Act Spousal Support in Ontario

Many people ask which statute their spousal support claim falls under, and whether the test for getting support is harder for unmarried partners. The short answer is that your relationship status and whether you are divorcing point to the right law, and the kinds of questions a court asks are broadly similar.

This article compares the Divorce Act and Ontario's Family Law Act, explains how entitlement is approached for married and unmarried partners, and outlines the basic steps for starting a claim. It is general information only, and a lawyer can confirm what applies to you.

Choosing the statute

The federal Divorce Act sets spousal support rules for married couples who divorce. Provinces and territories set the rules for unmarried common-law partners and for married couples who separate without divorcing, and in Ontario that is the Family Law Act.

Under the Divorce Act, a court can, on application by either or both spouses, make an order requiring a spouse to secure or pay, or secure and pay, spousal support. The word spouse includes a former spouse in the support provisions. A divorce proceeding requires that either spouse has been habitually resident in the province for at least one year, and divorce on the ground of breakdown requires living separate and apart for at least one year.

Which statute you rely on, and in which court, can depend on whether you are also asking for a divorce or property relief, so it is worth getting advice before you file.

How entitlement works for married spouses

Under the Divorce Act, the court weighs each spouse's financial resources and needs, the length of the marriage, the roles each spouse played, care of the children, whether the recipient can become self-sufficient within a reasonable time, and any existing orders or agreements. The Act directs the court to consider the condition, means, needs and other circumstances of each spouse, including the length of cohabitation and any existing support arrangements.

A support order should recognize economic advantages or disadvantages arising from the marriage or its breakdown, relieve economic hardship, and where practicable promote each spouse's economic self-sufficiency. Fault is left out of it: the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

If child support and spousal support are decided together, the court must give priority to child support, and spousal support, including a compensatory claim, may be revisited later if child support took priority.

How entitlement works for unmarried partners

In Ontario, unmarried partners can claim spousal support if they lived together as a couple for at least three years, or if they were in a relationship of some permanence of any length and had a child together. Married spouses can also claim. This threshold is the main difference you are likely to meet if you were never married.

Once you meet it, Ontario.ca says a claimant must show at least one of these:

• A relationship role that prevented them from building their own career.
• A need for support after separation while the other spouse can pay.
• A legal agreement providing for support on separation.

Factors affecting the amount include a large income difference, whether there are children and who cares for them, ages, roles in the relationship, mental and physical health, and ability to support oneself. How these compare with the Divorce Act factors in practice depends on your situation, so it is worth confirming with a lawyer.

Side-by-side comparison

The Spousal Support Advisory Guidelines are not law, but judges often base decisions on them. They do not decide entitlement, which must be proven or agreed before the formulas apply.

Starting a claim and what happens after

For a Form 8 application, a spousal support claim needs Form 13 if you are claiming support only, or Form 13.1 if you are claiming both property and support. Form 13A, the Certificate of Financial Disclosure, is also required, and financial disclosure documents are needed when a support claim is made.

You prepare Form 8 and a Continuing Record, and a clerk issues the application with a court file number. The respondent is served through someone else aged 18 or older using special service, with a blank Form 10 (Answer), and then you file Form 6B (Affidavit of Service). The Answer deadline is 30 calendar days if the respondent receives the application in Canada or the US, or 60 calendar days elsewhere.

A separation agreement can set support without going to court, but it must be understood, based on complete and honest financial disclosure, and not signed under pressure, or a court may set it aside. Once an order exists, FRO automatically receives court-ordered spousal support and collects it from the payor.

What to do next

• Decide whether you are married, living common-law, or a former spouse after divorce.
• Record the dates you started living together, married, and separated.
• Gather financial records, since disclosure is required when a support claim is made.
• Find any existing separation agreement or order and read what it says about support, review dates and remarriage.
• Ask a family lawyer which statute and which court suit your situation before you file anything.

Frequently asked questions