Spousal Support in Ontario
In Ontario spousal support is an available claim to either spouse. Although there is no automatic entitlement to spousal support the general conception is that the spouse who finds himself or herself in a better financial position will be required to pay support to the other so that the less well off spouse can maintain a reasonable standard of living, have access to finances while searching for employment, and pay for any tuition or training programs to help him or her become self sufficient. This is contrary to common perception in which spousal support has often been thought to only be available to the caregiver of the children or to the homemaker. In reality, there are a number of factors that are taken into consideration that assist the judge in making a decision as to which party is entitled to receive spousal support.
For instance, according to the Family Law Act several factors laid out for consideration include any available assets that each spouse may have at the time of separation, the means that each party may have in the near and distant future, the dependant's capacity to contribute to his or her own support, and the payor's ability to provide support. The factors listed under the Divorce Act are similar and include the means of each spouse at their disposal, the needs and circumstances of each spouse, the length the spouses cohabited, the functions performed by each spouse during cohabitation, and any order, agreement, or arrangement relating to the support of either spouse. The purpose of the above said factors is to ensure that any economic advantages or disadvantages are recognized, that any financial consequences that result from responsibilities pertaining to children are apportioned between the parties, that any economic hardship is alleviated, and that self sufficiency is promoted. However, depsite the above mentioned common factors the Spousal Support Advisory Guidelines are comoonly relied upon by lawyers and judges to provide an accurate assessment as to which party is likely to be the recipient of a spousal support order. It is however important to keep in mind that the said Guidelines are not legislated and are simply advisory in practice.
In respect to the quantum and duration of support the Family Law Act provides that factors used to determine same include
whether the either party has the means to pay support, whether they are likely to have same in the future, the dependant’s capacity to contribute to his or her own support, the parties ages and current health status, the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together, the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures, any legal obligation of the payor or dependant to provide support for another person, the desirability of either party to remain at home to care for a child; if the dependant is a spouse the length of time the dependant and respondent cohabited, the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents, any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse was devoting the time spent in performing that service in remunerative employment and was contributing the earnings to the family’s support, the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and any other legal right of the dependant to support, other than out of public money.
A common misperception in relation to spousal support is the belief that if one spouse committed adultery then that spouse should be liable to pay spousal support or in the alternative should be financially reprimanded in some way during the separation process. This is a false belief as the obligation to provide support exists regardless as to the conduct of either spouse. The court does however have the discretion to take conduct into account if it was unconscionable so as to constitute a gross repudiation of the relationship. As an aside, did you know that it is possible to contract out of spousal support. Today, the courts are being found to uphold spousal support release provisions in domestic contracts so long as they were consummated both fairly and equitably and not under unconscionable circumstances. The courts do not take kindly to agreements contracted under pressing situations including under undue influence, undue pressure, with a lack of good faith, without legal representation or independent legal advice, and where the provisions promote hardship upon one of the parties involved. Did you know that it is possible to change or vary an award of spousal support if it can be shown that there has been a material change in circumstances. A material change in circumstances may include an increase in income, loss of employment, or the child attaining the age of the majority. It is also possible to seek retroactive support for a period preceding the commencement of the application.