Spousal Support

Wednesday, 19 March 2014 21:01

Spousal Support

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Spousal Support Basics

In general, if one spouse earns more money than the other spouse, he/she may have to pay alimony, which is known in Canada as spousal support. There is no set formula for the amount of spousal support, although there are a set of non binding spousal support guidelines that judges and lawyers follow. Despite this, spousal support is decided on a case-by case basis, and there is a lot of variability in the results.

Gender

Officially, spousal support is not based on the gender of individuals. Men and women alike have to pay spousal support, although generally more men than women pay spousal support. However, the Court will not look at the sex of an individual and base their decision on that factor.

How Spousal Support is Determined

There are a number of factors that are considered in determining that amount of spousal support, including the parties assets, incomes, ages, health, standard of living, ability to be self-sufficient, contribution to each other’s career, length of marriage, and more.

Basically, a judge will review all of the economic factors that affect each party, with particular emphasis on the effect of the marriage and the divorce on the parties financial circumstances, then try to apportion the family income in a fair way between spouses.

There are also spousal support guidelines that guide judges in the exercise, but they are non binding on the judge.

How Long Must One Pay Spousal Support

For longer-term relationships, as well as in cases where the parties have children, the Courts generally do not place a time limit on spousal support. This does not mean you will need to pay spousal support forever or that you will receive spousal support forever. It just means that Courts do not want to engage in an exercise of gazing into a crystal ball too many years ahead to see what each spouse’s financial situation will be in the future. If you or your spouse’s financial situation changes materially, for instance when you retire, it is always open to you to go back to Court to end spousal support or change it to a different amount of spousal support.

In short-term relationships where there are no children, particularly when the couple is young spousal support is normally time limited.

A type of spousal support order that is becoming more common is known as a “review order.” Under a review order, the Court will order that the amount of spousal support can be reviewed after a certain number of years. This gives you the opportunity of going back to Court to modify your spousal support order without the necessity of showing that you or your spouse’s financial situation has changed. However it is not a guarantee that spousal support will be changed, a review order simply opens the door to allowing a Court to looking at the spousal support situation again.

Review orders for spousal support are commonly made where one spouse is out of the workforce, but is expected to get back into the work force, particularly after some training or education.

The Unfaithful Spouse

Infidelity has no effect on spousal support. It does seem unfair to pay a lot of money each month for the rest of your life to someone who spent their time having affairs while you spent it advancing your career. However, divorce, child custody, child support, spousal support, and property division are all no fault in Canada.

Is Spousal Support Tax Deductible?

Yes it is.       

Temporary Spousal Support, Interim Spousal Support & Permanent Spousal Support

Temporary or interim spousal support is spousal support awarded after separation but before divorce. This amount of spousal support is just a quick and rough amount determined to tide the spouses over until the divorce and more detailed analysis can be made. When the divorce is granted, spousal support is made final. However, the reality is that the amount of interim or temporary spousal has a great effect on the final order of spousal support; often the two are the same.

Spousal Support Guidelines

Determining the correct amount of spousal support is more of an art than a science. There are Spousal Support Guidelines in place to help make this determination.

The Spousal Support Guidelines are simply recommendations, not rules. However, judges generally follow them and the Courts have stated that if a judge awards an amount of spousal support that is significantly different from the Spousal Support Guidelines, the judge must give reasons why this is the case.

To calculate what the Spousal Support Guidelines requires, you need to use special software that family law lawyers and judges will have access to.

Here is roughly what you can expect (based on a paper by MacKinnon J and Murray)

  1. Where no child support is being paid, the recipient spouse’s income was 36.6% to 44.5% of the family’s net disposable income (income less tax, CPP & EI).
  2. In cases of shared or split custody the family’s net disposable income is divided approximately equally between the two spouses.
  3. When one child is living with the spousal support recipient, the recipient typically receives 45-50% of the family’s net disposable income.
  4. When two children are living with the spousal support recipient, the recipient typically receives about 55% of the family’s net disposable income.
  5. When three children are living with the spousal support recipient, the recipient typically receives about 60% of the family’s net disposable income.
  6. When the children are in the care of the spousal support payer, the custodial parent typically keeps about 60% of the family’s net disposable income. The spousal support recipient usually receives what would be given if there were no children.
  7. For higher incomes (family incomes of over $150,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower.
  8. For lower family incomes (family incomes below $50,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower, as there is simply not enough money to go around.
  9. If the spousal support recipient is not making good efforts to earn an income, normally a lower amount of spousal support will be ordered.
  10. If the spousal support payer does not voluntarily start paying spousal support right away, usually a higher amount of spousal support is awarded. Conversely, voluntarily paying spousal support right away normally results in a lower amount of spousal support being awarded.

Some important things to note about the amount of spousal support awarded:

  1. For higher incomes (family incomes of over $150,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower.
  2. For lower family incomes (family incomes below $50,000.00 per annum), the amount of spousal support as a percentage of the family’s net disposable income will normally be lower, as there is simply not enough money to go around.
  3. If the spousal support recipient is not making good efforts to earn an income, normally a lower amount of spousal support will be ordered.
  4. If the spousal support payer does not voluntarily start paying spousal support right away, usually a higher amount of spousal support is awarded. Conversely, voluntarily paying spousal support right away normally results in a lower amount of spousal support being awarded.

The Limit for Spousal Support

It is important to keep in mind there are time limits that apply to the issues of spousal support. If a claim is not made properly then such a claim could be potentially barred.

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