Spousal Support in Canada: Who Pays and How Much

Spousal support is money one former spouse pays the other after separation. Unlike child support, it is not automatic. The person asking for it must first show they are entitled, and only then are the amount and length decided. Most lawyers, mediators and courts in Canada estimate spousal support using the Spousal Support Advisory Guidelines, which produce a range of amounts and durations based mainly on the spouses' incomes, the length of the relationship and whether there are children.

This article is part of the guide to family law in Canada.

The short version

• Entitlement comes first. It can be compensatory, needs-based or contractual.
• The Spousal Support Advisory Guidelines are not law, but they are widely used to estimate amount and duration.
• Without children, the guideline amount is 1.5% to 2% of the gross income difference for each year of cohabitation, up to 50%.
• Duration is generally half a year to one year of support for each year together, and can be indefinite after 20 years or under the rule of 65.
• Common-law partners can claim support in most provinces once they meet the provincial definition of spouse. Quebec is the main exception.
• Periodic spousal support is generally taxable to the recipient and deductible for the payer.

Step 1: Entitlement

Canadian courts recognize three bases for spousal support, drawn from Supreme Court of Canada decisions such as Moge v. Moge and Bracklow v. Bracklow:

The Divorce Act sets out the objectives of spousal support, including recognizing economic advantages and disadvantages from the marriage, sharing the costs of child care, relieving economic hardship from the breakdown and promoting each spouse's self-sufficiency within a reasonable time. Provincial laws set similar objectives for unmarried spouses.

Step 2: Estimate the Amount and Duration

The Spousal Support Advisory Guidelines were developed with support from the federal Department of Justice. They are advisory only, but they are widely used across Canada to set a starting range.

Without child support formula

Used when there are no dependent children:

• Amount: 1.5% to 2% of the difference between the spouses' gross incomes for each year of cohabitation, up to a maximum of 50% of the income difference. For relationships of 25 years or more, the range is fixed at 37.5% to 50%.
• Duration: half a year to one year of support for each year of cohabitation.
• Indefinite duration: where the relationship lasted 20 years or more, or where it lasted at least five years and the recipient's age at separation plus the years together equal 65 or more. This is called the rule of 65.

Worked example: a couple lived together for 10 years with no children. One spouse earns $100,000 a year and the other earns $40,000. The gross income difference is $60,000. Ten years at 1.5% to 2% gives 15% to 20% of that difference, or $9,000 to $12,000 a year. That is about $750 to $1,000 a month, for five to ten years. Where the final number lands within that range depends on the facts.

With child support formula

Used when child support is also being paid. This formula works differently:

• It uses each spouse's net income after child support, taxes and government benefits, called individual net disposable income.
• It divides the combined net disposable income so that the recipient ends up with a target share, typically in the range of 40% to 46%.
• Duration is linked both to the length of the relationship and to the ages of the children.

Because these calculations are complex, lawyers and mediators use specialized software to run them.

Moving within the range

The guidelines produce a range, not a single number. Factors that push toward the high or low end include the strength of a compensatory claim, the recipient's needs, the payer's ability to pay, property division results and efforts toward self-sufficiency. The guidelines also include exceptions, for example for compensatory claims in short marriages and for very high or very low incomes.

Common-Law Partners

The Divorce Act applies only to married spouses. Common-law partners claim spousal support under provincial or territorial law, which first requires meeting that province's definition of spouse.

For more, see common-law separation rights by province.

How Spousal Support Is Paid

• Periodic payments, usually monthly, are the most common.
• Lump-sum payments can provide a clean break, but have different tax treatment.
• Time-limited support ends on a set date or event.
• Review clauses allow support to be reviewed at a set time, such as when a spouse finishes retraining.

Taxes

Periodic spousal support paid under a written agreement or court order is generally deductible for the payer and taxable income for the recipient. Lump-sum payments are generally not deductible or taxable. Child support is treated differently and is generally neither deductible nor taxable. Because of these rules, spousal support is often negotiated with tax effects in mind. See the Canada Revenue Agency's guidance on support payments.

Changing or Ending Spousal Support

Support can be changed by agreement or by court order when there has been a material change in circumstances, such as:

• a significant change in either spouse's income
• the payer's retirement
• the recipient becoming self-sufficient
• the recipient starting a new relationship, which may reduce need but does not end support automatically

Final agreements are harder to change than court orders. Courts give significant weight to agreements that were fairly negotiated with legal advice. The guidelines do not by themselves allow a court to reopen a valid final agreement.

Frequently Asked Questions

Is spousal support automatic after a long marriage?

No, but long relationships make entitlement much more likely, especially where one spouse earned much less or stayed home with children.

Does misconduct affect spousal support?

Under the Divorce Act, misconduct by a spouse is not considered in deciding spousal support. Family violence can be relevant to other issues, such as parenting.

Can spousal support be waived?

Yes, spouses can agree to waive spousal support, unlike child support. A waiver should be made with full financial disclosure and independent legal advice. Courts can still intervene in limited circumstances, such as where the agreement was unfair when made or circumstances changed drastically.

Is spousal support paid while the divorce is ongoing?

It can be. Courts can order temporary or interim spousal support while a case is ongoing, often based on the guideline range.

Can spousal support and child support both be paid?

Yes. Child support takes priority, which is why the with child support formula accounts for it first.

Need advice about spousal support? Search LawyerDirectoryCanada.ca for family lawyers by province and city.

Sources

• Spousal Support Advisory Guidelines, July 2008: executive summary, Department of Justice Canada
• Steps to using the Spousal Support Advisory Guidelines: without child support formula, Department of Justice Canada
• Spousal Support Advisory Guidelines glossary, Department of Justice Canada
• Divorce Act, Justice Laws Website, Government of Canada
• Family Law Act (Ontario), e-Laws
• Lines 21999 and 22000: Support payments made, Canada Revenue Agency
• Bill 56: family law reform and parental union regime, RSS Lex