How Spousal Support Works in Ontario: Who Pays and Who Gets It

You have just separated, and one of the first money questions is whether one of you will have to support the other. Spousal support is meant to deal with the financial fallout of the relationship ending, and there is no single answer that fits everyone.

This article gives you the big picture for Ontario: who can claim, what a court looks at, how long support can last, and how it is paid and collected. It is general information, not advice on your situation.

What spousal support is

Spousal support is money one former partner pays the other after separation. Under the Divorce Act, a court can order one spouse to pay the other a lump sum, periodic sums, or both, in whatever amount it thinks reasonable. Either spouse, or both, may apply.

If an application is still waiting to be decided, the court can make a temporary (interim) order until it is. Couples can also agree on support themselves in a separation agreement, or ask a judge to decide.

Who can claim it

In Ontario, you may be eligible for spousal support in any of these situations:

• 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.

Common-law partners may claim spousal support, but they are not legally required to split property acquired while living together, because property generally belongs to whoever bought it. In the Divorce Act's support provisions, 'spouse' includes a former spouse.

Under the Divorce Act, a court may not consider either spouse's misconduct in the marriage, such as an affair or who left, when making a final or interim spousal support order. Whether Ontario's own family legislation treats conduct differently is worth confirming with a lawyer.

How the amount and length are decided

There is no single formula written into the law. Under the Divorce Act, a court must consider each spouse's condition, means, needs and other circumstances, including how long you lived together, the roles each of you played, and any existing order, agreement or arrangement about support. If you are not divorcing, which law applies and what it requires depends on your situation, so it is worth confirming with a lawyer. Ontario's guidance lists the income gap, who cared for any children, each person's age, roles during the relationship, health, and ability to support themselves.

A support order should 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, and, so far as practicable, promote each spouse's economic self-sufficiency within a reasonable period.

An order can be for a definite period, for an indefinite period, or until a specified event happens, and the court can attach terms and conditions it thinks fit and just. In practice, judges often base their decisions on the Spousal Support Advisory Guidelines (SSAG), which are not law. Our separate article on the SSAG explains how those ranges work.

Under the Divorce Act, when a court is deciding both child support and spousal support, it must give child support priority. If that priority meant spousal support was not ordered or was reduced, a later reduction or end of the child support counts as a change of circumstances, and the recipient can then apply for spousal support or a variation.

Tax, payment and enforcement

For tax purposes, spousal support must be paid periodically, with the timing set out in a court order or written agreement, and the payer must be living separate and apart from the recipient when the payment is made. Support under an order or agreement made after April 1997 is taxable to the recipient and deductible by the payer if the order or agreement clearly states the spousal amount and all child support for the current and previous years is fully paid. Support paid without a court order or written agreement is not subject to these tax rules.

When a court orders support in Ontario, the order is automatically filed with the Family Responsibility Office (FRO), which collects payments from the payor and sends them to the recipient, but does not pay when a payor misses a payment. A separation agreement is different: it must be filed with a court and then registered with FRO before FRO can enforce it. FRO enforcement costs nothing for the spouse receiving support.

What to do next

• Gather recent income records for both of you, such as tax returns and pay information.
• Write down the date you started living together, the date you separated, and who cared for any children.
• Note any support already paid, and whether it was under an order or written agreement.
• Remember that dividing property is a separate process, with its own time limits.
• Speak with a family lawyer before signing a separation agreement, since it may be hard to change later.

If circumstances change after an order is made, only a court can change it. FRO cannot change support terms.

Frequently asked questions