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Spousal Support

Can I get spousal support (alimony)? If so, how much can I get and how long can I get it for?

There are no Tables or Guidelines regarding the issue of spousal support. Accordingly, if you would like to receive spousal support or are defending a claim for spousal support, then you will need to speak with a family law lawyer.

In determining spousal support, the court will examine the recipient’s need and the payor’s means and ability to pay. It will also look at any other factor that is relevant to determine the issue such as the length of the marriage or co-habitation, the recipient’s ability to achieve financial self-sufficiency and whether either party has been economically advantaged or disadvantaged by the marriage or its breakdown.

The length of a spousal support order can be related to the length of the marriage but this is not always the case.

I don’t want to have to collect spousal support directly from the payor. Is there a way to avoid this? What is the “Family Responsibility Office”?

The Family Responsibility Office (FRO) is basically a government collection agency for child support and spousal support orders in Ontario. Upon the making of a child or spousal support order in Ontario, the court will order the FRO to collect support from the support payor and pay it over to the support recipient. If the support payor is employed, then collection will generally be done by way of wage garnishment at source. If the support payor is self-employed, then the FRO will expect payments of support to be made by the payor to the FRO directly. The FRO can also collect outstanding support payments via garnishment of income tax refunds as well as other means. If the payor is in arrears of support payments, then the FRO has various ways to enforce the support order including suspension of provincial and federal licences and applying to court to have the payor committed to jail.

The parties are free to opt out of the FRO program by filing a “Notice of Withdrawal” with the FRO. However, there are various advantages and disadvantages of doing so that should be discussed with a family law lawyer before such a decision is made.

Can I get a “lump sum” payment of spousal support?

The short answer to this question is “yes”. However, if you are considering paying or receiving a lump sum payment of spousal support in exchange for a release of spousal support, you should first consult with a family law lawyer. There are many things that a family law lawyer will be able to explain to you including how lump sum payments are taxed by the Canada Revenue Agency vs. how periodic payments of spousal support are taxed, what the proper lump sum amount is and whether as a support payor you could still have exposure to a spousal support claim even after a lump sum is paid.

What are the tax consequences of spousal support payments?

Generally speaking, unlike child support payments, periodic payments of spousal support are taxable in the support recipient’s hands and tax deductable for the payor. However, the payments must be made pursuant to a court order or a written agreement. Conversely, lump sum payments of spousal support are not taxable in the recipient’s hands and are not tax deductable for the payor. Because of this difference in tax treatment, anyone involved in a spousal support case should seek the assistance of a family law lawyer.

Must I have been married to get spousal support?

The Family Law Act (Ontario) defines a “spouse” as “…either of two persons who are married to each other, or….who are not married to each other and have cohabited (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.” Accordingly, you do not have to be married to get spousal support as long as you have lived with the support payor for at least three years or you have a child together and have been in a relationship of some permanence.

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