Category: Spousal Support

High-range spousal support is an increased amount of spousal support versus the mid-range or low-range amount. High-range spousal support is not routinely ordered; however, an award of high-range of spousal support may be appropriate and reasonable in certain circumstances. Generally, a recipient spouse will have to prove that there is a good reason why they should be awarded high-range spousal support. Chapter 9 of the SSAG lists the following non-exhaustive factors that determine location within the ranges provided: Strength of any compensatory claim; Recipient’s needs; Age, number, needs, and standard of living of children (if any); Needs and ability to pay of payor; Work incentives for payor; Property division and debts; and, Self-sufficiency incentives. Factor 1/7: Strength of any compensatory claim Spousal support may be compensatory (meant to compensate the recipient for some economic detriment suffered) or non-compensatory (involving claims based on need) in nature. A strong compensatory claim indicates that both amount and duration (length of time spousal support should be paid) should be at the higher end of the range. Factor 2/7: Recipient’s needs If the recipient has reduced income and/or earning potential because of age or other factors, the award of spousal support may be higher in...

When determining spousal support, a court will look to the objectives listed in section 15.2 of the Divorce Act. Section 15(2) states as follows: (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should, (a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and, (d) Insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. In the case of Morneau v. Morneau, Justice Cole stated in response to a wife’s claim for a review of spousal support that although self-sufficiency was an important objective of the Divorce Act, it should not be given priority over the other objectives enumerated in section 15(2) of the Divorce Act. Justice Cole stated as follows: "The fact that a party has failed to take reasonable steps to become financially self-sufficient is...

In order to calculate the quantum of spousal support payable, the incomes of the parties must be determined. The respective incomes of the parties is then used in order to calculate a range of spousal support applicable in a given case. There are two issues that arise when a payor of spousal support has a post-separation increase in income. First, whether an income increase should be reflected in increased spousal support. In addition, if it ought to be included, how much of the increase should be included in determining the income of the payor for the purposes of spousal support (ex: all, some, or none of the increase ought to be taken into account in calculating spousal support). In making determinations on these issues, the following factors are taken into account: The length of the marriage; The roles adopted during the marriage; The time that has elapsed between the date of separation and the post-separation increase in income; and, The reason for the income increase. For instance, has the payor assumed a new job or did he or she receive a promotion within the same job? According to the Spousal Support Advisory Guidelines, the upper limit or outer boundaries upon...

Factor 3/7: Age, number, needs, and standard of living of the children A child with special needs, or a young child, will usually require more time and resources from the care-giving parent which will indicate a spousal support award in amount and duration at the high end of the range. A low standard of living or lower income levels also indicates a spousal support award at the high end of the range. Factor 4/7: Needs and ability to pay of payor If the payor spouse has high need and low ability to pay, this may indicate an award of spousal support at the low end of the range. Factor 5/7: Work incentives for payor Some types of employment are associated with significant expenses that are not covered by the employer or reflected in income or deductions from pay, such as parking, cost of commuting, tools, and so on. If a payor has significant expenses associated with his employment, then this may be a factor indicating the low end of the range is appropriate. Factor 6/7: Property division and debts A low amount of property to be divided would suggest an award at the high end of the range while a large amount...

In Ontario, the issue of whether support payments made to a dependant are taxable or deductible often arises in family law courts. The law in Ontario is that child support is not tax-deductible to the payor, and is free of taxation in the hands of the recipient. However, spousal support, on the other hand, is tax-deductible to the benefit of the payor, and taxable in the hands of the recipient. It is interesting to point out that although courts do not have jurisdiction to award spousal support free of taxation, this past year in 2014, Justice Wong of the British Columbia Superior Court, did just that. In the case of Boekhoff v. Boekhoff, a wife sought to claim over $100,000 in arrears of spousal support that had been owed to her since 2001. Throughout the 13 year period where arrears had allegedly accumulated, the wife settled down with a new common law partner, and subsequently negotiated an agreement with her former husband that would see him pay a smaller amount in spousal support per month than was previously ordered. Justice Wong ruled that the agreement was valid and that the fact that the wife had allowed the agreement to survive...

According to subsection 15.2(5) of the Divorce Act, spousal misconduct in a marriage is not a proper consideration in determining an order for spousal support. According to section 33(10) of the Family Law Act, the obligation to provide support for a spouse exists without regard to the conduct of the spouses. Nonetheless according to this section, a court may consider spousal misconduct in relation to determining the amount of spousal support order only in the rare case where the misconduct is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

The Spousal Support Advisory Guidelines (SSAG) are guidelines that underpin the calculation of spousal support. The final version of these guidelines were released in 2008. The SSAG have not been legislated by any level of government. In other words, the SSAG are not law. Rather, they are guidelines. Even though they are not binding law, lawyers and judges regularly rely on the SSAG (Fisher v. Fisher, 2008 ONCA 11). According to case law judges must consider these SSAG on an initial application for support. The SSAG also have a role to play on variation applications of spousal support; however, in variation cases there may be complicating factors that a court must consider before applying the SSAG wholesale. The Spousal Support Advisory Guidelines: The Revised User’s Guidelines (which are sometimes called the “RUG”) were released in April of 2016 and update the SSAG. The RUG do not provide a comprehensive review of all case law relating to the SSAG since 2008. However, the RUG focuses on leading appellate and trial decisions since the release of the SSAG in 2008. The SSAG and DivorceMate are closely connected as DivorceMate is a computer program that provides calculations based on the SSAG. Family lawyers and judges in...

The case of Ontario (Director, Family Responsibility Office) v. Van Westerop was one that saw the court rule on an application by the Family Responsibility Office to have the husband imprisoned for non-payment of spousal support. In this case, the husband owed the full amount of $900,000 in spousal support. The husband had consented to an order that he was obliged to make these support payments, and he had many opportunities to comply with the order over the course of 13 years. Because the husband was unable to prove his case, as was made in Ontario (Director, Family Responsibility Office) v. Buffan, that there was a material change in circumstances since he consented to the order, the Family Responsibility Office application for committal for non-payment of spousal support was granted. The Court of Appeal stated in its reasoning: Recognizing that a statue gives the court the power to make a committal order as a term of a temporary order made in a default proceeding does not, of course, speak to the propriety of imposing that term in any given case. the FRSAEA and predecessor legislation dealing with the enforcement of default orders have always regarded imprisonment for non-payment of those...

Background Spousal support is the obligation of one party to financially provide for the other after separation of spouses. Spousal support is also called spousal maintenance or alimony, particularly in other jurisdictions. The principles of spousal support are gender neutral. Men or women may apply for support or need to pay it, depending on their circumstances and those surrounding the relationship. Spousal support may be a short-term transitional award, time limited, or a long-term award. Fault is not a factor considered in awarding spousal support. In 1986, the Divorce Act stated in section 15.2(5) that "the court shall not take into consideration any misconduct of a spouse in relation to the marriage." In the case of Leskun, Justice Binnie explained that "misconduct, as such, is off the table as a relevant consideration." Justice Binnie went on to explain that in any event "there is ... a distinction between the emotional consequences of misconduct and the misconduct itself." The cases that underpin entitlement to spousal support are: Moge and Bracklow. The Spousal Support Advisory Guidelines underpin determining the amount and duration of spousal support, and also the entitlement of spousal support. Moge Moge reversed the trend of minimalist spousal support awards. According...

Spousal support rights and obligations can apply to both married and common law couples. In a common law relationship, a party may have a right to spousal support if: They have a child or children together; or, They have been cohabiting for a period of more than three years. According to section 15.2(6) the Divorce Act, spousal support awards should: Recognize any economic disadvantages or advantages to the spouses arising from the marriage or its subsequent breakdown; Apportion between the spouses any financial consequences that have arisen from caring for any child of the marriage in excess of any obligation for the support of any child of the marriage; Relieve any economic hardship borne by the spouses, which arises from the breakdown of the marriage; and, Insofar as is practicable, promote the economic self-sufficiency of each spouse in a reasonable period of time. While adults are expected to take care of themselves and become self-sufficient following the breakdown of a relationship, there are often factors and consequences of the relationship which may leave one party at an economic disadvantage. For example, where one party forgoes career opportunities or advancements in education in order to maintain the home and be a stay-at-home...