​

​

The way in which a claim for spousal support is determined depends on a number of factors, which are assessed on a case-by-case basis. There is, however, legislation, case law, and guidelines that are considered and consulted when determining whether spousal support is payable in the event of separation or divorce and if so, how much is payable and for how long it is payable.

 

The first step in determining whether spousal support should be paid by one ex to another is to determine whether the ex-partner claiming spousal support is entitled to spousal support. There are three grounds for entitlement to spousal support, and an ex may claim spousal support on one or any combination of these grounds.

​

The first ground for entitlement is what the court refers to as a “compensatory claim” for spousal support. This means that the ex who is seeking spousal support is entitled to spousal support based either on their economic loss or disadvantage that has arisen as a result of the roles adopted in the relationship, or the fact that the ex who is seeking spousal support has conferred an economic benefit on the payor of spousal support without being compensated for doing so.

​

The second ground for entitlement is what the court refers to as a “non-compensatory claim” for spousal support. In short, this means that the ex who is seeking spousal support needs financial support from the other because their own means and resources are not sufficient to meet their needs without suffering a significant decrease in their standard of living.

​

The third ground for entitlement is what the court refers to as a “contractual claim” for spousal support. This means that the ex’s are parties to an agreement that provides for the payment of spousal support in the event of separation, and that spousal support should be paid on that basis.

​

If it is determined or agreed upon that an ex-partner is entitled to spousal support for any of the above-summarized reasons, the next step in determining the spousal support arrangements is to figure out the amount of spousal support to be paid, and the length of time for which spousal support will be paid. Again, the manner in which these issues will be resolved depends on a number of factors and will vary case by case. However, the answers to the questions “how much spousal support is payable” and “for how long is spousal support payable” are typically answered by consulting a legal tool called the Spousal Support Advisory Guidelines (SSAG).

​

The SSAG are used to determine the appropriate amount of spousal support to be paid, as well as the duration of a payor’s spousal support obligation. To utilize the SSAG, a lawyer or the court will input the information required to complete the calculations, which includes both exes’ age, place of residence, and income, the duration of the parties’ cohabitation, and information regarding the parties’ children and post-separation parenting arrangements.

​

​Once the proper information has been inputted, the SSAG will indicate a “range” of spousal support that should be payable. The SSAG will also indicate a “range” of duration, i.e. the amount of years for which spousal support should be payable. Typically, spousal support is payable for anywhere from half of the number of years that the parties cohabited (on the low end) to the number of years that the parties cohabited (on the high end).

​

There are, however, exceptions to this general rule. For example, there is a rule called the “rule of 65.” This rule states that if the length of the cohabitation in years plus the recipient’s age at the time of separation equals or exceeds 65, spousal support may be payable indefinitely. There are other reasons, in some cases, to deviate from the numbers suggested by the SSAG. 

​

Spousal support payments can be made in one of two ways: in monthly payments, or by a lump sum payment. It should be noted that monthly payments of spousal support are considered taxable income for the recipient and a taxable deduction for the payor, but that lump sum payments of spousal support do not have any tax implications, according to Canada Revenue Agency (CRA) policy.

 

The SSAG are simply a guideline, and the legislation (the Divorce Act and the Family Law Act) and relevant case law also impact how the issue of spousal support will be determined. The above is simply a summary of how the issue of spousal support is typically approached, but some cases involve a more complex analysis to determine the spousal support arrangements.

​

​

​

​

​

​

​

 

​

​

 

​

​

​​

​​

​​

​

​