Spousal Support Clauses in a Separation Agreement: Amount, Length, Review

If you are negotiating spousal support, three questions drive most of the discussion: how much, for how long, and what happens if circumstances change. A good clause answers each of them clearly so that neither of you needs to return to the table in a few months.

This article explains how those terms are usually built in an Ontario separation agreement. It is general information, not advice on your situation, and a lawyer can help you apply it to your income and family facts.

Who can ask for spousal support

Spousal support may be available to a spouse who was married, who lived with the other as a couple for at least three years, or who had a relationship of some permanence and a child together. The higher-income spouse pays the lower-income spouse, and support is not automatic on separation or divorce.

When a court makes a spousal support order under the Divorce Act, it must consider each spouse's condition, means, needs and other circumstances, including the length of cohabitation, each spouse's functions during cohabitation and any other support arrangement. The objectives include recognizing economic advantages or disadvantages from the marriage or its breakdown, sharing the financial burden of child care, relieving economic hardship, and promoting self-sufficiency within a reasonable time. These are useful talking points even when you are negotiating privately.

Setting the amount

Ontario.ca lists factors that affect the amount: income differences, children and who cares for them, ages, roles during the relationship, and health and ability to self-support. The federal Spousal Support Advisory Guidelines are often used, but they are only guidelines.

The guidelines express the amount as a range, a percentage of the gross income difference between the spouses. For relationships of 25 years or more, the range is 37.5% to 50%, subject to a net-income cap so that the recipient does not end up with more than 50% of net disposable income. For shorter relationships, the range is different, so ask a lawyer or use a reliable calculator rather than assuming a number.

Length of the relationship is counted from the start of cohabitation, including pre-marital cohabitation, to the date of separation. That means the date you separated, and the date you began living together, both need to be stated accurately in the agreement.

Whatever amount you choose, the clause should state the dollar figure, how often it is paid, the date of the first payment, the income the figure is based on, and how it is paid.

Setting the length: fixed, indefinite or with a review

Duration is often the hardest term. The guidelines describe support as indefinite where the relationship is 20 years or longer, or under the "rule of 65", where years of relationship plus the recipient's age at separation equals or exceeds 65. The rule does not apply to relationships under five years. "Indefinite" does not mean permanent. It means no time limit is set when the order is made, and it stays open to variation and review.

If your relationship falls close to a threshold, such as five or twenty years, the exact separation date can change the result under the guidelines. Be careful and accurate with dates.

Review and termination terms

An agreement may include a review date, and may end support on events such as remarriage or retirement. The more precise you are, the fewer arguments later. Consider the following.

• The review date, and what each person must provide beforehand, such as tax returns and a financial statement.
• What the review can change: amount only, or also length.
• Whether support ends on remarriage, on retirement, on death, or on another named event, and how each event is defined.
• Whether living with a new partner affects support, and if so, how that is defined.
• What happens if the paying spouse's income drops or the recipient's income rises.
• Whether either spouse can ask a court to change the terms, and the process to try first, such as mediation. The Divorce Act says that, where appropriate, parties should try to resolve matters through a process such as negotiation, mediation or collaborative law.

If the spouses later agree on changing support, they can file a consent motion with the court. If not, one files a motion to change, and the other has 30 days to respond (60 if outside Canada or the U.S.). Only a court can change a support order or domestic contract. To change a contract the parties negotiate a new one and file it with the court using form 26B.

Making it enforceable and what to do next

Ontario guidance says a spousal support agreement should be made with full, honest financial disclosure, without pressure, and with an understanding of its terms, or a court can set it aside. It recommends legal advice, and says filing with the court allows enforcement through the Family Responsibility Office. A separation agreement is enforced by the Family Responsibility Office only if registered, by filing it with the court using form 26B and then sending the required documents.

• Fix the dates of cohabitation, marriage (if any) and separation.
• Gather income records for both spouses. A financial statement is usually required if a family court case involves support: Form 13 for support-only cases and Form 13.1 where property or debts are involved.
• Decide your goals on amount, length and review, and what you could accept.
• Ask a lawyer to calculate the guideline range for your facts.
• Write the review and ending events in plain, specific wording.
• Get legal advice on the full draft before signing.
• Discuss with your lawyer whether to file the agreement with the court.

Tax treatment of support payments and how support interacts with child support and property are important, and they depend on your facts. Confirm them with a lawyer or accountant before you finalize the numbers.

Frequently asked questions