Look at all the variables when calculating spousal support

By Tony Poland, LegalMatters Staff • Calculating spousal support is not as simple as some believe, which is why seeking legal advice is not only prudent for the person receiving it but for those paying, says Toronto family lawyer A. Julia P. Tremain. 

“This is a very complicated issue. You really do need to speak to a lawyer because there are so many different variables that factor into it,” says Tremain, a partner with Waddell Phillips Professional Corporation. “It is not as straightforward as a child support calculation. The other thing that happens is sometimes people are quick to sign away spousal support or agree to a lower amount or for a shorter period of time because they just want the whole thing over with. 

“It might be a significant amount of support that they are giving up if they don’t actually find out what their rights and entitlements are,” she tells LegalMattersCanada.ca.  “On the other side, there is also the chance someone could be agreeing to pay more than they should in their haste to move on.”

You don’t have to be married to receive spousal support

In Ontario, someone may be entitled to spousal support if they were married, lived together as a couple for at least three years, or were in a permanent relationship and had a child together.

According to the Government of Ontario, to receive support someone would have to prove: 

• they had responsibilities during the relationship such as child care or helping their spouse build their career that prevented them from building their own career;
• their separation or divorce left them in need of financial support and their former has enough income and assets to pay support; or
• they have a legal agreement stating they will get spousal support upon separation.

Tremain says support is not guaranteed following a separation or divorce. It must be negotiated or a judge can decide, she says.

Unlike child support, which is generally a simple calculation, there can be many things to consider when determining spousal support, Tremain says.

“When calculating child support there are child support guidelines, which is a misnomer because they are not really guidelines,” she explains. “There is a child support calculator, allowing you to enter your income and the number of children to determine how much you pay. What you owe is based on your income and the number of children.

“There are Spousal Support Advisory Guidelines (SSAG) but they are much more flexible and open to interpretation.” 

Tremain says people often “just go straight to what the number should be” when determining spousal support.

‘You must determine entitlement first’

“But, in fact, you must determine entitlement first,” she says. “People often forget about that first step. It can be fairly straightforward if one parent has been at home caring for the family for many years. However, many other factors can affect entitlement.”

She says any financial help is “supposed to be time limited so that it allows each party to move on and be independent of each other,” adding there are two main reasons for receiving support: need and compensation.

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“Your partner might have a high income while you do not,” Tremain says. “You may have been married for a long time and have a high standard of living based on your partner’s earnings. When the relationship ends, you may have a difficult time coming anywhere close to that standard of living. That would be a needs claim. The same would apply if you have a health issue and are unable to work full-time.”

She says a person can make a financial claim if they have been out of the job market for years caring for the family.

“The thinking is that you may be disadvantaged because you are behind in income after putting your career on hold,” Tremain says. “It is likely you have lost seniority and may not be competing at the same level in the workforce as you might have been otherwise.

Level of support could depend on the person’s age

“The level of support you receive can also depend on how old you are,” she adds. “Someone who is well educated and in their late thirties or early forties may have a far better chance of getting back into their field than someone who has less education and is in their late fifties.”

The duration of the relationship will also come into play, she says, explaining that someone who has been married for 30 years will typically be entitled to more support than someone who has been married for three years.

The Spousal Support Advisory Guidelines suggest indefinite support would apply to a relationship of 20 years or more. However, the guidelines note that “indefinite support does not necessarily mean permanent support. It only means that no time limit can be set at the time of the order or agreement.”

Tremain says it is possible for someone to receive support for life under certain circumstances. However, she adds that a review would likely be built into the agreement.

“A review is helpful because circumstances change,” says Tremain. “People may retire and their income is reduced so they can longer afford to pay the full amount. But that person would have to demonstrate a material change in circumstances to amend the agreement if the terms of a review are not built into the agreement.”

Receiver must show they made efforts to improve their situation

She says the person receiving the support would be expected to prove they have made efforts to improve their financial situation.

“There is generally an expectation that the person would have to show what efforts they made to find employment,” Tremain says. “If they are receiving support for a health issue, they would have to provide medical documentation indicating why they are unable to work.”

It typically takes a court order to end spousal support, she says. Even if your former partner remarries you could still be on the hook to pay, says Tremain.

“It is one of the things that people find very frustrating,” she says. “Someone who is paying wonders why they still need to provide support when their ex is now with someone who is a high-income earner.

“But support is based on the need and disadvantage arising from the marriage. You would have to go to court and convince a judge the need no longer exists.”

When negotiating a spousal support agreement, Tremain says both parties should provide complete and honest financial information and understand the terms of consequences.

“It is natural for people who are divorcing to just want to get it over with but this is an important issue,” she says. “Someone may be entitled to significant support payments and if they fail to get advice, they could be waiving that away.”