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I promised a couple of months ago to write about the issue of spousal support in a future article and today, I finally fulfill that promise. No issue bedevils a family law file more than that of spousal support.

Stereotypically, in a heterosexual relationship, a husband/father arrives at counsel’s office for a first appointment and freely announces that he will happily pay support for his children but will not pay for his lazy ex-spouse. It matters not how many years the couple was together, the roles played during the relationship nor the discrepancy in their wages without blinking, their answer is the same. This should not be taken to mean that in my experience I have found women more generous or willing to pay support to their spouses. I have not. One should remember too, that today’s spouses include same-sex couples as well as heterosexual ones, whether married or common-law.

As we previously saw, there is the potential for significant discrepancy between the property settlements achieved between separated married versus separated unmarried couples. However, this discrepancy is not as great when we consider the issue of spousal support. Both the federal Divorce Act and Ontario’s Family Law Act address the support issue.

While it may seem obvious, it is often overlooked that in order to claim support under the Divorce Act, one must firstly be married and secondly, desirous of a divorce. As such, common law couples don’t have resort to this statute in the event that they wish to pursue a spousal support claim.

This leaves the Family Law Act. Spousal support is dealt with in Part III, and there is an expanded definition of spouse at section 29. In addition to married couples, spouses here include persons who are not married and have cohabited “continuously for a period of not less than three years,” or are in a “relationship of some permanence, if they are the natural or adoptive parents of a child.” 

The major difference between married versus unmarried couples lies in the first three years of the relationship. For example, it is possible for support obligations to arise between married couples of two years, but the same will not arise between unmarried childless couples of the same duration. Beyond this basic entitlement issue, considerations concerning the amount and duration of support, as will be seen below, are similar.

The relevant considerations in determining spousal support is set out in the Family Law Act. Those considerations include the length of time that the spouses have lived together and the financial impact – if any – that the relationship has had on a spouse’s earning potential.

Typically, the longer the relationship, the greater the financial interdependence of the spouses. This generally results in a greater amount of support for a longer duration. That is not to say that a long-term relationship, in and of itself, equals a spousal order being made, but it is an important factor. For example, if at the end of a long relationship both parties have comparable incomes and have carried on in their respective employment paths, then it is unlikely that there will be any support obligation. This is the reverse from a situation where, after a relationship of many years, one party puts their employment on hold for the benefit of the other.

Additional factors are the parties’ ages, physical and mental health and capacity to contribute to their own support. Finally, when considering self-sufficiency and need, one must consider the parties’ standard of living during the relationship. While the harsh reality is that two people cannot continue to live at the same standard of living that they could when they were together, one party – particularly after a long term relationship – will not be permitted to live luxuriously while the other eats Kraft dinner in subsidized housing.

The calculation of child support was considerably simplified by the implementation of the Child Support Guidelines nearly two decades ago. These are generally definitive numbers and obligatory. Several years ago, the Spousal Support Advisory Guidelines were also introduced. As the word advisory suggests, these guidelines are not obligatory: a range of support figures is provided, from low to medium to high, with suggested durations. 

James Stengel is a Family Law Lawyer with Houghton, Sloniowski & Stengel. Reasonable Doubt appears on Mondays. 

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Houghton, Sloniowski & Stengel.

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