Spousal Support, also known as alimony, is a legal arrangement that requires one spouse to provide financial assistance to the other after separation or divorce. Its purpose is to ensure that both spouses can maintain a similar standard of living after the end of their marriage. Although not as common as it used to be, spousal support is still sometimes requested, especially in longer-term marriages or those involving high net-worth individuals.
When a support request is granted, Canadian judges must determine an amount that’s as fair as possible to both sides. In this blog, the team at Galbraith Family Law explains the various factors that impact how judges decide spousal support.
How Spousal Support is Calculated
Couples undergoing a divorce or legal separation are allowed to create their own spousal support agreement. If they can’t reach an accord, judges will generally use the spousal support Advisory Guidelines to determine support amount and duration.
These guidelines provide support ranges based on the length of the marriage or common-law relationship, with cohabitation periods for married couples also being taken into account. In Ontario, two basic formulas are used to calculate spousal support: Without Child Support and With Child Support.
Without Child Support Formula
If child support isn’t payable, the formula for calculating spousal support relies primarily on the length of the relationship. The amount and duration increase with the length of the relationship to a maximum after 25 years of marriage.
For each year of marriage or cohabitation, support amounts range from 1.5 to 2% of the difference between the parties’ gross incomes, up to a maximum of 50%.
spousal support duration ranges from six months to one year for each year of marriage or cohabitation, with the duration being indefinite after 20 years. Indefinite support is also calculated for marriages lasting five years or more when the years of marriage added to the recipient’s age at the time of divorce totals at least 65. This guideline, known as the ‘Rule of 65,’ would apply if the recipient married at 60, for example, and divorced after five years.
With Child Support Formula
When child support is ordered, the formula used to calculate spousal support is based on each spouse’s individual net disposable income (INDI). Once INDI is calculated for both, the totals are added together and spousal support is incrementally transferred until the requesting spouse achieves 40 to 46% of the total INDI.
Special Rules Based on Income
The spousal support Advisory Guidelines indicate that these formulas should not apply automatically when the payor has a gross annual income of over $350,000, as the results can be unequal. In this case, courts will use their discretion when fixing a support amount. A similar guideline provides that spousal support is typically not payable if the payor makes less than $20,000.
Factors Considered by Judges When Determining Spousal Support Payments
While the support guidelines provide an important basis, there are other factors that judges consider when determining spousal support payments. Understanding these factors is crucial for anyone going through a divorce or separation and can help ensure a fair and just outcome.
The Financial Needs and Means of Each Spouse
One of the first things the court will examine is how much the requesting spouse is asking for and whether the other spouse has the means to pay it. This involves:
Calculating how much money the recipient needs to meet their reasonable monthly expenses, such as housing, food, transportation, and other necessities.
Considering how much the payor can afford to pay without jeopardizing their ability to support themselves.
If there is a significant difference between each party’s financial means, the higher-earning spouse may be required to provide more support to the lower-earning spouse to ensure they can maintain a similar standard of living until they can become financially self-sufficient (if possible).
Length of the Marriage or Common-Law Relationship
The length of the marriage or common-law relationship plays a key role in how judges decide spousal support. This is because longer marriages often involve a greater degree of financial interdependence and the lower-earning spouse may have made career sacrifices or contributed to the household in ways that impacted their ability to earn income. Judges may award spousal support for short-term marriages or relationships for a shorter duration or not at all, depending on the specific circumstances.
Age and Health of the Spouses
If a requesting spouse is elderly or has health issues that impact their ability to work, the judge will consider this fact when determining spousal support payments. The paying spouse’s situation is also considered: if their ability to pay is limited due to age or a health condition, the judge may consider this fact when putting together a support order.
On the other hand, if both spouses are relatively young and healthy, the judge may be less likely to award support or may award it for a shorter duration. In these cases, the assumption is that both spouses have the ability to earn income and maintain their standard of living after the marriage ends.
Income Potential of Each Spouse
The income potential of each party is another one of the main spousal support amount factors. Judges will examine the earning capacity of both spouses to determine whether one party is financially dependent on the other and, if so, to what extent. Factors that affect one’s earning potential include:
If the financially dependent spouse has limited job opportunities due to a lack of education or skills, for example, the judge may award spousal support to support them while they retrain or acquire the skills needed to increase their income potential.
Roles of the Spouses During the Marriage
In the past, it was common for one spouse (often the wife) to take on the majority of the household and childcare responsibilities while the other spouse (often the husband) focused on their career. Today, this arrangement isn’t as common, but some couples still maintain it.
If one spouse sacrificed their career or earning potential to support the other spouse’s career or to care for the family, the judge may be more likely to award spousal support to the party who made those sacrifices. This is because the financially dependent spouse may have difficulty transitioning to a financially independent lifestyle without support.
Is Lifelong Spousal Support Available?
Generally speaking, spousal support is not meant to be a permanent arrangement in Ontario, but it can happen in some circumstances.
If a marriage lasts for 20 years or more, the Guidelines suggest that spousal support should not be limited to a specified duration, making it indefinite. The same outcome applies if
The marriage lasts for five years or more and;
The years of marriage plus the recipient’s age add up to 65 or more.
However, courts have the discretion to follow or depart from these advisory guidelines based on the specific circumstances of each case.
What if Your Spouse Refuses to Get a Job?
Suppose an spousal support recipient refuses to get a job or become self-sufficient without a valid reason. In that case, the payor may apply to the court to vary or terminate spousal support payments, arguing that the recipient spouse is intentionally underemployed or not making reasonable efforts to become self-sufficient.
However, it is important to note that the court will consider various factors when deciding whether to vary or terminate spousal support payments, including the recipient spouse’s efforts to become self-sufficient, any barriers to employment, and any health or other issues that may prevent the recipient spouse from working.
Do You Have Questions About How Judges Decide Spousal Support?
Understanding how judges decide spousal support amounts is crucial for anyone going through a separation or divorce. The factors considered during support determinations are complex and multifaceted, and the outcome can have significant financial and emotional implications for both parties.
At Galbraith Family Law, our experienced Ontario family law lawyers can answer your questions about spousal support amount factors and other issues related to spousal support. We are dedicated to helping our clients achieve fair and just outcomes and work tirelessly to protect their rights and interests throughout the divorce process. If you need assistance with spousal support or any other family law matter, contact us today to schedule a consultation. We are here to support you every step of the way.