Spousal Support Canada: How Provincial and Federal Rules Differ

If you search for spousal support in Canada, you will find information that seems to point in different directions. That is because there is no single national law covering everyone. Which rules apply to you depends mainly on whether you were married and whether you are divorcing.

This article explains the split between federal and provincial rules, shows which statute usually governs which kind of couple in Ontario, and covers what the two systems have in common. It is general information, and a lawyer can confirm how it applies to you.

Two sets of rules, one country

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

So the rules can differ depending on where you live and whether a divorce is involved. Because this article is written for Ontario, it focuses on the Divorce Act and Ontario's Family Law Act. If you live in another province or territory, its own law applies to common-law partners and to separated spouses who are not divorcing.

Which law governs you

If you are married, the rules that apply depend on whether you divorce or separate without divorcing. A Divorce Act 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. If you separate without divorcing, the provincial rules, which in Ontario means the Family Law Act, set the support rules.

If you are unsure which category you fall into, for example because you lived together before marrying or you separated and reconciled, a lawyer can confirm how that affects your claim.

Who can claim in Ontario

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.

Ontario.ca says a claimant must show at least one of the following:

• A role in the relationship prevented them from building their own career.
• They need support after separation and the other spouse can pay.
• A legal agreement provides for support on separation.

What the two systems share

Even though the statutes are different, the ideas behind support are similar. 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. Ontario.ca lists similar factors affecting the amount: a large income difference, whether there are children and who cares for them, ages, roles in the relationship, health, and ability to support oneself.

Fault generally does not matter in a divorce. Canada has no-fault divorce law, so the reasons the marriage ended do not affect the support obligation, and the Divorce Act says the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

For working out amounts, the Spousal Support Advisory Guidelines are not law and were designed for the Divorce Act, but judges often base decisions on them, and courts and lawyers often apply them under provincial law too.

Getting paid and tax

Court-ordered spousal support is automatically filed with the Family Responsibility Office, known as FRO, which collects from the payor and pays the recipient. A separation agreement or domestic contract must first be filed with the court on Form 26B and then registered with FRO.

On tax, spousal support is generally deductible by the payer and taxable to the recipient for orders or agreements made after April 1997, if the order or agreement clearly states the amount and all child support for the current and previous years is fully paid. Child support is not deductible or taxable. A tax adviser can confirm how this applies to your payments.

What to do next

• Work out whether you are married, and whether a divorce is planned or under way.
• Write down the date you began living together, the date you married if you did, and the date you separated.
• Note whether you have children together and who cares for them.
• Collect any separation agreement, cohabitation agreement or court order.
• Speak with an Ontario family lawyer about which statute applies and which court is right for your claim.

Frequently asked questions