Spousal Support After Divorce in Ontario: Who Qualifies?

If your marriage is ending, one of the first money questions is often whether one spouse will pay support to the other. The answer depends on your own situation, so it is worth confirming with a lawyer. Your income, your spouse's income, how long you were together and how you shared work and family responsibilities are the kinds of things people usually think about.

This article explains where spousal support sits within an Ontario divorce, what the Spousal Support Advisory Guidelines are used for, why duration varies, and the nearby issues that often get mixed up with it. It does not give exact amounts or time periods, because those depend on your facts.

Spousal support is separate from the divorce itself

A divorce is a court order officially ending a valid marriage, and only legally married couples can divorce. The main legal ground is that the marriage has broken down, usually shown by living separate and apart for at least one year. Support is a different question from whether you can be divorced.

This matters in practice. A simple divorce application is for divorce only, and no other claim, such as support or property, can be made in it. Because support cannot be raised in that application, the route you take for it depends on your situation, and a lawyer can confirm the right one. You also cannot assume that a quick, uncontested divorce will deal with it.

Also be careful with timing. A divorce takes effect on the 31st day after the judgment granting it is made. Some money deadlines are tied to the divorce or to your separation date, so it is wise to understand them before the divorce is finalized.

Who may qualify for spousal support

Whether you qualify depends on your situation, so it is worth confirming with a lawyer. These are the kinds of questions that are often worth thinking through:

• How long did you live together as a couple?
• What was each person's income during the relationship, and what is it now?
• Did one person reduce work or education to care for children or the home?
• Does either person have health issues or limits on their ability to earn income?
• Does either person need time or training to become self-supporting?
• What does your spouse have the ability to pay?

Answers to these questions help a lawyer give you a realistic picture. They do not guarantee an outcome, and two couples with similar incomes can end up with quite different results.

The Spousal Support Advisory Guidelines and how long support lasts

Lawyers often refer to the Spousal Support Advisory Guidelines when discussing support. How they apply to you depends on your facts, so it is worth confirming with a lawyer, who can explain what they are and whether they matter in your case.

Duration is the part people most often ask about. How long support lasts depends on your situation, so it is worth confirming with a lawyer. A lawyer can look at your figures and explain what may apply in your case.

How support gets settled

Most people try to reach an agreement before asking a judge to decide. Under the Divorce Act, parties must try to resolve matters through a family dispute resolution process where appropriate, such as negotiation, mediation or collaborative law. A lawyer acting for you in a divorce must also encourage you to try one, unless the circumstances clearly make that inappropriate.

If you reach an agreement, a separation agreement can cover property, support and parenting. It is unenforceable unless it is in writing, signed by the parties and witnessed. A court may set aside an agreement, or part of it, if a party failed to disclose significant assets or debts, did not understand its nature or consequences, or on contract-law grounds. If you use arbitration, an award is enforceable only if, among other conditions, each party received independent legal advice before making the arbitration agreement.

If you cannot agree and the case goes to court, a judge must hold at least one conference in each case where an answer is filed. A motion generally cannot be brought until a case conference has been held, except in urgent situations. Financial statements are part of this: Form 13 is used for support claims without property claims, and Form 13.1 is used for property claims, with or without support.

Money issues that are often confused with support

Spousal RRSPs also deserve a look. Withdrawals can sometimes be taxed in the contributor's hands, but this attribution does not apply if the spouses are living separate and apart because of marriage breakdown at the time of withdrawal. A tax professional can confirm how this applies to you.

What to do next

• Write down your separation date and keep records of when you moved apart.
• Gather income tax returns, pay stubs and statements for the past few years.
• List all assets, debts, pensions and RRSPs for both spouses.
• Note how work and family responsibilities were shared during the relationship.
• Do not sign a separation agreement until you have had it reviewed.
• Update your will after a separation or divorce, since a divorce after signing generally revokes gifts to a former spouse unless the will says otherwise.

A family lawyer can review your numbers, explain how the guidelines are likely to apply and tell you which deadlines affect you. An accountant can help with the tax side.

Frequently asked questions