Spousal Support

• Author: JoAnn Kurtz
• Pages: 83-100

Introduction ........................... 84

Parties with Standing to Claim Support ... 84

Under the Divorce Act ................ 84

Under the Family Law Act .............. 84

Applicable Legislation .................. 85

Factors That Determine Support

Entitlement ........................ 86

Language of the Divorce Act ........... 86

Language of the Family Law Act ......... 86

How the Courts Decide ............... 87

Amount and Duration of Support ........ 87

Spousal Support Advisory Guidelines ..... 89

The Without Child Support Formula ...... 89

The With Child Support Formula ........ 92

After the Formulas Have Been Applied .... 95

Types of Support Orders ................ 95

Periodic Support Payments ............. 95

Time-Limited Support ................. 96

Lump-Sum Support .................. 96

Indexing Orders ..................... 96

Securing Support .................... 96

Interim Support ..................... 96

Duties of Parties and Legal Advisers in

SpousalSupport Proceedings ........ 97

Under the Divorce Act ................ 97

Under the Family Law Act .............. 98

Tax Treatment of Support Orders ......... 98

Variation of Support Orders ............. 98

Chapter Summary ...................... 99

Key Terms ............................. 100

Review Questions ...................... 100

Discussion Question .................... 100

Exercises .............................. 100

7

Spousal Support

Learning Outcomes

After completing this chapter, you should be able to:

• State which legislation applies to a particular

supportsituation.

• Explain the role of the Spousal Support Advisory

Guidelines in determining spousal support.

• Calculate the amount and duration of

spousal support payments using the without

childsupportformula under the Spousal Support

AdvisoryGuidelines.

• Explain the with child support formula under

theSpousal Support Advisory Guidelines.

• Describe the steps to be taken under the Spousal

Support Advisory Guidelines after the formulas

havebeen applied.

• Explain the tax treatment of spousal support orders.

And, with regard to the Divorce Act and the Family

LawAct, you should be able to:

• Explain when a party has standing to claim spousal

support.

• Explain the factors that determine when a party is

entitled to receive support.

• Explain the factors that determine the amount and

duration of support payments.

• Describe the different types of support orders.

• State the statutory basis for variation of spousal

support orders.

83

© [2022] Emond Montgomery Publications. All Rights Reserved.

84 PART II THE SUBSTANTIVE LAW OF MARRIAGEAND FAMILY BREAKDOWN

Introduction

In Ontario, every spouse has an obligation to be self-supporting to the extent that he

or she is able. Once a spouse satisfies that obligation, he or she has an obligation,

to the extent that he or she is able, to support the other spouse in accordance with

that person’s need. The obligation to support one’s spouse continues after the parties

separate, and a court may order one spouse to pay support to the other.

Spousal support is dealt with under both the Family Law Act1 and the Divorce Act.2

Support is decided on the basis of the need of the spouse applying for support and the

ability of the other spouse to pay.

In this chapter we will be looking at the law of spousal support, including:

• the parties with standing to claim support,

• the applicable legislation,

• the factors that determine support entitlement,

• the types of support orders,

• the amount and duration of support payments,

• the Spousal Support Advisory Guidelines,3

• the tax treatment of support orders, and

• the variation of support orders.

Parties with Standing to Claim Support

The parties with standing to assert a claim for support differ under the Divorce Act and

the Family Law Act.

Under the Divorce Act

Pursuant to case law, a spouse, for the purposes of the Divorce Act, means a person

who is married, and under section 2 of the Divorce Act, “spouse” includes a former

spouse with respect to spousal support. Accordingly, only spouses who are or were

validly married to each other have the right to make a claim for spousal support. To

make a claim for support, one of the parties must have started a divorce action. The

right to assert a claim for support continues indefinitely even after the parties divorce.

There is no limitation period set out in the Act.

Under the Family Law Act

The definition of a “spouse” is much broader under the support provisions of the

Family Law Act. “Spouse” is defined in section 29 to mean either of two persons:

• who are married to each other;

1 RSO 1990, c F.3.

2 RSC 1985, c 3 (2nd Supp).

3 Canada, Department of Justice, Spousal Support Advisory Guidelines, by Carol Rogerson & Rollie Thompson (Ottawa:

Department of Justice, July 2008), online (pdf): <https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/pdf/

SSAG_eng.pdf>.

limitation period

a certain time allowed by a

statute for the commencement

of a court proceeding

© [2022] Emond Montgomery Publications. All Rights Reserved.