Indefinite Spousal Support After a Long Marriage in Ontario

After a long marriage, many people expect support to last for life, or fear it will. The reality is more nuanced. The Spousal Support Advisory Guidelines (SSAG) often point to support with no set end date, but that is not the same as support that can never change.

This article explains the rule of 65, what indefinite really means, and the events that commonly lead to a change.

When support is indefinite under the guidelines

The SSAG are not law, but judges often base their spousal support decisions on them. Under the without-child-support formula, duration is generally 0.5 to 1 year for each year of cohabitation. Support is indefinite in two situations:

• the marriage lasted 20 years or more, or
• the rule of 65 is met: the marriage lasted at least five years and the years of marriage plus the recipient's age at separation total 65 or more.

The rule of 65 does not apply to marriages under 5 years. Entitlement must still be established first. An income gap alone does not create it.

Indefinite does not mean permanent

Indefinite support does not necessarily mean permanent support. It only means no time limit can be set when the order or agreement is made, and the support stays subject to variation and review.

A court can vary, rescind or suspend a spousal support order, retroactively or prospectively, on an application by either or both former spouses. Before varying, it must be satisfied that either former spouse's circumstances have changed since the order or the last variation, and it must take that change into account.

A review is different from a variation. A variation requires a material change in circumstances, while a review is more like an initial application, and the terms of the review clause should limit what is reviewed.

How much support after a long marriage

Under the without-child-support formula, support ranges from 1.5% to 2% of the difference between the spouses' gross incomes for each year of cohabitation. The cap is 50%, and the top of the range cannot exceed the amount that would equalize the spouses' net incomes.

The formulas do not apply mechanically at the extremes. Above a payor income of $350,000, discretion is used, and incomes below $20,000 or $30,000 require adjustments. Recognized grounds for going outside the ranges include illness and disability, debt payments, property division, and basic needs or hardship.

What can change or end indefinite support

• Retirement: if an order or agreement says nothing about retirement, it is usually a material change that can support a variation. Courts closely examine early retirement, and if it is voluntary and not necessary or reasonable, the court may find no material change. Health problems can justify early retirement.
• Pensions already divided: support after retirement focuses on the undivided portion of the payor's pension, and the payor must prove how much was already divided.
• Remarriage or a new relationship: this does not automatically end support, though it is often reduced and sometimes ended. Courts weigh whether the award is compensatory, the length of the first marriage, the recipient's age, and how stable and well-off the new household is.
• Self-sufficiency: a recipient must make reasonable efforts to contribute to their own support, and courts can impute income, commonly minimum wage, if they do not. Once a recipient is self-sufficient, support can be terminated, but courts often decide 'not yet', reducing support or setting a future end date.

What to do next

If you are negotiating or facing a change, the details of your order or agreement matter, including any review clause or retirement wording. If your situation has changed, only a court can change an order, through a motion to change. After it is issued, you must serve the other spouse within 30 days and file an Affidavit of Service (Form 6B), and the other spouse has 30 days to respond, or 60 days if they live outside Canada or the United States.

• Find your order or agreement and read any review or retirement terms.
• Collect income and pension information for both spouses.
• Note ages, health and work history at separation and now.
• Keep records of any change, such as retirement or a new household.
• Get legal advice before stopping or reducing payments on your own.

The Family Responsibility Office cannot change support terms, and it does not pay when a payor misses a payment.

Frequently asked questions