Who Qualifies for Spousal Support in Ontario? Entitlement Basics

Before anyone asks how much support might be paid, there is a more basic question: does the person asking have a legal right to it? That right is called entitlement.

This article walks through the three recognized bases for entitlement, who can apply in Ontario, and what can affect whether support continues. It is general information, and the facts of your situation matter a great deal.

Entitlement comes before the numbers

Entitlement is the threshold question. The Spousal Support Advisory Guidelines do not decide it, and it must first be established under the applicable law. An income gap on its own does not create entitlement, and it must be proven or agreed before the formulas apply.

Under the Divorce Act, a court can order support in whatever amount it thinks reasonable, and either spouse may apply. It considers each spouse's condition, means, needs and other circumstances.

The three bases for entitlement

Under the Divorce Act, a spousal support order should recognize economic advantages or disadvantages arising from the marriage or its breakdown, share the financial consequences of caring for children, relieve economic hardship from the breakdown, and, so far as practicable, promote each spouse's economic self-sufficiency within a reasonable period. Which basis fits your situation depends on your facts, so it is worth confirming with a lawyer.

Who can apply

In Ontario, you may be eligible for spousal support if you were married, if you lived together as a couple for at least three years, or if you were in a relationship of some permanence and had a child together. Common-law partners may claim spousal support even though they are not legally required to split property acquired while living together.

For a divorce, a court in a province has jurisdiction if either spouse has been habitually resident there for at least one year immediately before the proceeding starts. For corollary relief such as support after a divorce, a court has jurisdiction if either former spouse is habitually resident in the province when the proceeding starts, or if both accept the court's jurisdiction.

Under the Divorce Act, misconduct such as an affair or who left is not considered when a court makes a final or interim spousal support order. Whether other rules apply under Ontario's own family legislation is worth confirming with a lawyer.

What can limit or end support

• Short marriages: under the without-child-support formula, short marriages produce very limited awards, if there is entitlement at all, and the rule of 65 does not apply to marriages under five years. Compensatory claims in short and short-to-medium marriages without children are assessed individually.
• Sponsorship: when a short marriage breaks down while a sponsorship agreement is in place, that agreement may be an independent factor.
• Self-sufficiency: a recipient must make reasonable efforts to contribute to their own support, and a court can impute income, commonly minimum wage, if they do not. Once self-sufficient, support can be terminated, though courts often decide 'not yet' and reduce support or set a future end date.
• New relationships: a recipient's remarriage or new relationship does not automatically end support, though support is often reduced and sometimes ended.
• Retirement: if an order or agreement says nothing about it, retirement is usually a material change that can support a variation, but courts closely examine early or voluntary retirement.

A zero result under a formula is not the same as no entitlement. It may reflect a current inability to pay.

What to do next

• Write a short timeline: when you met, moved in together, married, had children and separated.
• Note who gave up work, education or career opportunities, and why.
• Collect any written agreements, emails or texts about support, since a contract can be formal or informal.
• Gather recent income and expense records for both of you.
• If your spouse has died, act quickly: a surviving spouse who wants an equalization payment must file an Election of Surviving Spouse no later than six months after the death, and someone who depended on the deceased can separately claim against the estate for support.

A family lawyer can tell you which basis fits your facts and which rules apply to your relationship.

Frequently asked questions