Spousal Support in Ontario Family Law
Navigating spousal support issues can be complex and emotionally challenging during a separation or divorce. It often also remains contentious well after the separation has been finalized if spouses seek a review of support.
At Stephen Durbin and Associates, our experienced family law team provides clear, compassionate guidance to help you understand your rights and obligations under Ontario law when it comes to spousal support.
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What is Spousal Support?
Spousal support, often referred to as alimony or maintenance, is a financial payment one spouse may be required to make to the other following the breakdown of a marriage or common-law relationship. In Ontario, spousal support is governed by the Divorce Act for married couples and the Family Law Act for unmarried partners. Its primary purpose is to address economic imbalances that arise from the relationship or its end, ensuring fairness and promoting self-sufficiency where possible.
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Unlike child support, which is a right of the child, spousal support is not an automatic entitlement. Whether spousal support is required, depends on factors such as the length of the relationship, the roles each partner played, and their respective financial situations post-separation.
Entitlement to Spousal Support
Entitlement is the first step in determining spousal support. Ontario courts recognize three main bases for entitlement:
- Contractual Support: This arises from agreements like pre-nuptial agreements, marriage contracts or separation agreements where support terms are explicitly outlined.
- Compensatory Support: This addresses economic disadvantages suffered by one spouse due to roles assumed during the relationship, such as staying home to raise children or supporting the other’s career. For instance, in the landmark Supreme Court of Canada case Moge v. Moge (1992), the court emphasized that spousal support should recognize the economic consequences of marriage breakdown, particularly for homemakers who sacrifice career opportunities.
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- Non-Compensatory (Needs-Based) Support: This focuses on the recipient’s financial needs arising from the relationship’s end. The Supreme Court in Bracklow v. Bracklow (1999) clarified that support can be awarded based on need alone, even without a compensatory claim, to prevent hardship.
Importantly, a significant income disparity between spouses does not automatically create entitlement. As the Ontario Court of Appleal held in Berger v. Berger (2016), courts must assess whether the disparity stems from the marriage or its breakdown, rather than deciding solely on ability to pay.
In some instances, spousal support is not ordered at all. For example, in Burmi v. Dhiman (2001), the court denied interim spousal support in a very short marriage (7 weeks of cohabitation) because the wife, a well-educated professional, suffered no economic disadvantage from the marriage or its breakdown.
How is Spousal Support Calculated?
Courts consider various factors under section 15.2(4) of the Divorce Act or section 33(9) of the Family Law Act, including:
- The length of cohabitation
- Each spouse’s income, assets, and needs
- Functions performed during the relationship (e.g., childcare or homemaking)
- Any agreements or orders related to support
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While not legally binding, the Spousal Support Advisory Guidelines (SSAG), last revised in 2008, provide a framework for calculating amount and duration. The SSAG uses formulas based on incomes, relationship length, and whether children are involved.
Exceptions to SSAG ranges may apply in unique cases, such as short marriages or disabilities, allowing courts discretion to adjust awards for fairness.
In the case of Meen v. Kaur (2025), the court exercised its discretion to award interim spousal support above the Spousal Support Advisory Guidelines (SSAG) range due to the unique circumstances of a short marriage involving an immigration sponsorship undertaking.
Duration of Spousal Support
Spousal support can be time-limited or indefinite, depending on circumstances.
Short-term relationships often result in transitional support to help the recipient adjust. Longer marriages (20+ years) may lead to indefinite support, subject to review.
It is important to note that support without a termination date is not necessarily payable forever. Even in cases where indefinite support is ordered or agreed upon, there can be a review or termination of spousal support if the circumstances change.
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If the Rule of 65 is applicable in a case, it also results in support without a specified duration. Effectively, if a marriage is five years or longer and the years of marriage plus the age of the recipient (at the time of separation) add up to 65 or more, then indefinite support is appropriate.
The SSAG suggests durations like half the length of cohabitation for shorter marriages, but self-sufficiency is a key objective. As noted in Fisher v. Fisher (2008), recipients must make reasonable efforts toward self-sufficiency; failure to do so may lead to reduced or terminated support.
When preparing a separation agreement that references spousal support, it is important to ensure that terms are as clear as possible regarding the duration of support. Clarity in this area allows parties to avoid costly future disputes on the topic.
Variation and Termination of Spousal Support
Support orders can be varied or terminated if there is a material change in circumstances, such as remarriage, improved financial status, or retirement. Under section 17 of the Divorce Act, courts reassess based on factors like self-sufficiency and the original order’s objectives.
Termination often occurs when the recipient achieves self-sufficiency or the support duration expires. However, ongoing needs (e.g., due to disability) may prevent termination. In Elaschuk v. Elaschuk (1997), the court refused to terminate support where the recipient’s compensatory entitlement persisted due to the recipient being totally disabled because of advanced multiple sclerosis. The burden is on the party seeking change to prove it is warranted.
As can be reasonably expected, the variation or termination of a spousal support order is point of contention between ex-spouses.
This dispute can be costly if brought before the court, so it is strongly recommended that parties attempt to resolve the matter amongst themselves without court intervention. It is important to obtain independent legal advice from a family lawyer so that a review of spousal support can be properly negotiated.
Enforcement of spousal support
Along with child support, the Family Responsibility Office (‘FRO’), also enforces orders for spousal support. Unless parties withdraw from enforcement, FRO is mandated to enforce all support orders in Ontario; this government entity’s purpose is to effectively collect support from the support payor and disburse it to the recipient.
FRO has multiple enforcement tools to complete their mandate such as garnishing a support payor’s wages at the income source, suspension of payor’s driver’s licenses for default in support payments, etc.
How Stephen Durbin and Associates Can Help
Having proper legal guidance when navigating issues of spousal support allows parties to have a fair and reasonable order or agreement.
At SD&A, our associates are experienced in helping clients advance claims for spousal support, defend against claims for spousal support, variation of spousal support, and navigate enforcement of spousal support orders and agreements.
If you are dealing with issues regarding spousal support, please contact us at +1 855 694 5222.
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