Can Spousal Support Be Ordered After Divorce Is Final?

Some people finalize a divorce without ever raising spousal support. Later, they wonder whether it is too late to ask, especially if money has become tight or the marriage involved giving up a career.

This article explains the general framework in Ontario: who can claim, what a court looks at, and how a claim is started. It also explains why timing is a question to check carefully rather than assume.

Does a final divorce end the right to claim?

Under the Divorce Act, a court can, on application by either or both spouses, make an order requiring a spouse to secure or pay spousal support. For the support provisions, the word spouse includes a former spouse. That wording is why a divorce does not automatically end the ability to ask.

That said, a claim is not guaranteed. An earlier court order or an agreement may already deal with support, and a court considers existing orders or agreements. If you signed a separation agreement or a final order was made, the details matter a great deal.

If there is already a support order, the question may be one of changing it rather than starting fresh. A court varying a spousal support order must be satisfied that circumstances have changed.

What a court looks at

The Divorce 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. The court weighs each spouse's financial resources and needs, the length of the marriage, the roles each spouse played, care of the children, and whether the recipient can become self-sufficient within a reasonable time.

An order should recognize economic advantages or disadvantages from the marriage or its breakdown, relieve economic hardship, and where practicable promote each spouse's economic self-sufficiency. Canada has no-fault divorce law, and the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

The SSAG formulas do not decide entitlement. Entitlement must be proven or agreed before the formulas apply. The SSAG are not law, but judges often base decisions on them.

The timing question

Whether a deadline applies to a claim made after a divorce, and how it would be counted, depends on the facts and the law that applies to your situation. Do not assume that you are either safely in time or out of time. A lawyer can confirm this for you.

What is clear is that delay matters. For retroactive spousal support, the recipient's reason for delay, the payor's blameworthy conduct, the recipient's circumstances and hardship to the payor are all factors, and notice and delay carry more weight for spousal support. The date of effective notice is especially important.

For this reason, letting the other person know in writing that you are seeking support, and acting promptly, can matter. Once retroactive entitlement is established, the SSAG are used to calculate support back to the commencement date using actual known incomes.

How a claim is started

• Prepare an application (Form 8) and a Continuing Record.
• For a spousal support claim, include Form 13 (support claims only) or Form 13.1 (property and support claims), plus Form 13A, the Certificate of Financial Disclosure.
• A clerk issues the application with a court file number.
• Serve the respondent through someone else aged 18 or older using special service, with a blank Form 10 (Answer), then file Form 6B (Affidavit of Service).
• The respondent has 30 calendar days to file an Answer if they receive the application in Canada or the US, or 60 calendar days elsewhere.

The Superior Court of Justice may charge fees, and fee waivers are available. Which court is right for you depends on your situation, so it is worth confirming with a lawyer.

If you and your former spouse can agree, a separation agreement can set support without going to court, as long as it is understood, based on complete and honest financial disclosure, and not signed under pressure.

What to do next

• Find your divorce order and any separation agreement and read what they say about support.
• Write down the dates: marriage, separation, divorce and any time you raised support.
• Gather income records for both of you, as far as you can.
• Note the roles you played during the marriage, such as career sacrifices or childcare.
• Speak with a family lawyer promptly about timing, entitlement and the best court for your claim.

Frequently asked questions