Spousal Support

This is an old term referring to spousal support. This term is still commonly used in the United States.

Under the Divorce Act, a party can apply for financial support of a spouse or child, or custody or access to a child of the marriage.

A person who relies on someone else for financial support. In the context of divorce law, this may include a spouse or a child.

An order that one spouse pay the other a sum of money either in a lump sum or periodically, either for a set period of time, or indefinitely. The courts do not see marriage as “insurance” for spousal support. Spousal support is not paid as a right, and in order to receive spousal support a Court must find that a party is entitled to spousal support. The Court will take into account the “condition, means, needs and other circumstances”, which may include the following:

  • Length of the marriage/cohabitation;
  • Functions performed by each of party during the marriage;
  • Economic circumstances (including negative) arising from the marriage or its breakdown;
  • Any other sources of support;
  • The ability and/or capacity of each spouse to be self-sufficient.

Typically the payor may deduct spousal support from his/her income and the payee must declare the same as taxable income.

The Spousal Support Advisory Guidelines (“SSAG”) is a draft proposal which attempts to generate a mathematical formula for the range of Court outcomes for the quantum and duration of spousal support. At times, the Court will rely upon these guidelines in order to arrive at an amount of monthly spousal support; however, it is still unpredictable as to what will be ordered, as these matters are often fact driven.

The person you married.

If the parties have agreed to a waiver of spousal support or a set amount of monthly spousal support, the Courts typically try to uphold the agreement if it was entered into without undue pressure and if both of the parties had independent legal advice. The Divorce Act as a whole “advances the objectives of certainty, finality and negotiated settlements”. (Miglin v. Miglin, [2003] 1 S.C.R. 303 (S.C.C.).

If a party attempts to vary an agreement, they must show that there has been a change in circumstances that were not foreseen at the time the parties entered into the Agreement. The Supreme Court of Canada held in Miglin v. Miglin that “[p]arties are presumed to be aware that health, job markets, parental responsibilities, housing markets and values of assets are all subject to change.

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