Do You Have To Pay Spousal Support During A Separation?

Do You Have To Pay Spousal Support During A Separation?

Written by Bryan Daly
Fact-checked by Caitlin Wood
Last Updated August 10, 2021

Some marriages are happy and others aren’t, which is one of the main reasons Canada’s divorce rates have been climbing steadily since the country’s first unified divorce law was passed in 1968. While it may ultimately be healthier for two spouses to separate, there’s no arguing that the process is often long, tedious and expensive. 

Not to mention, a divorce or separation is tough on the family, especially children. According to the Government of Canada, over 1 million separated or divorced residents have children aged 18 or younger. That’s where spousal support can come into play. Read this to learn if you’ll have to pay spousal support during a separation.

What Is Spousal Support?

Often referred to as “alimony”, spousal support is a type of recurring payment that you may be legally obligated to make toward your former spouse if you have a higher income at the time of your divorce. “Partner” support is what you might have to pay during a separation if you and your common-law partner are unmarried.

All this said, it’s important to understand that the laws surrounding separations and divorces in Canada vary by province/territory. There are also many factors that could lead to an order for spousal or partner support, other than someone’s income. 

When Is Your Spouse Entitled To Spousal Support?

Although a divorce and a separation are similar, different rules apply to each process, as well as in every province and territory.

However, in most areas, common-law partners may qualify for support, depending on how long they lived together before they separated (at least 2 – 3 years is usually necessary to be eligible). Separations and divorces are done on a case-by-case basis.  

Basically, to qualify for spousal/partner support during a separation or divorce, your spouse or common-law partner must provide the Supreme Court of Canada with proof that they have a right to receive it. If so, they could be entitled to 3 types of support:

Contractual Support

One of the most common kinds of spousal support occurs after you’ve signed a prenuptial, cohabitation, separation or other agreement that lists mandatory payments as part of its conditions. The amount you’ll eventually have to pay depends on your specific contractual obligations. 

Compensatory Support

During your relationship, your spouse/partner may have had to give up an opportunity, such as their career or schooling to take care of your children or fulfill some other primary role. As a result, they have less possibility of earning an income than yourself and may be entitled to support.

Non-Compensatory Support

Separations and divorces are often nasty, leaving one partner/spouse with worse financial health than the other because the relationship has ended. In that event, they could be entitled to spousal support so that their living situation doesn’t deteriorate once they’re self-reliant. 

How Much Spousal Support Will You Have To Pay?

As mentioned, divorces and separations are judged “case-by-case”, which means the results can vary greatly depending on the exact circumstances. 

So, while there are certain non-binding regulations that most legal professionals follow when during divorce or separation in Canada, many factors can affect the amount of spousal/partner support you’ll have to pay, like you and your spouse/partner’s: 

  • Age
  • Income (after tax)
  • Assets
  • Role in the relationship
  • Employment status
  • Tax credits & deductions  
  • Number of children
  • Financial accounts
  • Province/Territory
  • Period of cohabitation/marriage/partnership
  • Health & living situation
  • Obligations & expenses

During the divorce/separation proceedings, the judge will examine these factors to determine which spouse/partner is entitled to support, as well as how much they qualify for and how long they’ll receive it. Since it can affect someone’s ability to become self-sufficient or care for their children, Canada’s economy will also be considered.

Spousal Misconduct, Child Support & Other Factors

Canadian divorces and separations are judged using “no-fault” law, so the exact reason for the divorce will not impact your legal obligation to compensate your spouse after the divorce/separation goes through. Then again, if you’re currently paying child support, an additional amount of spousal support could affect the financial welfare of your children. 

According to the Divorce Act of Canada, the Supreme Court judge’s duty is to make sure that the receiver of the spousal support intends to become self-sufficient when possible. Additionally, they must see that the spousal support order:

  • Fairly compensates the spouse/partner with the lowest income if they’ve given up an earning opportunity to fulfill their role in the relationship.
  • Fairly compensates the spouse/partner with the lowest income when their children need ongoing care or if their partner/spouse has the ability to pay.
  • Gives priority to child support (when necessary), along with the welfare of any children (both parents are obligated to support their kids).

Do Men Or Women Have To Pay Spousal Support?

In the past, husbands were considered less financially dependent on their wives, even if they had lower incomes. So, historically speaking, more men than women have been ordered to pay spousal/partner support during divorces and separations.

However, the Supreme Court of Canada doesn’t base its judgements on gender. The decision of whether or not to assign spousal/partner support depends on each spouse’s overall financial health, as well as their children, living situation and ability to become self-sufficient once the divorce/separation is finalized

How Long Do You Have To Pay Spousal Support?     

Like the size of your alimony payments, the exact amount of time that you’ll be ordered to pay spousal support can depend on a number of factors, including but not limited to: 

Length Of Relationship 

Short-term marriages and partnerships can lead to shorter spousal support periods (0.5 to 1.0 times the length of the relationship), while relationships of 20 or more years sometimes have no set termination date. The court can’t predict your financial future, so you may need to pay alimony until your case is up for review following a significant event, such as your retirement.  

Number Of Children

Short-term relationships can also have shorter spousal support periods if the couple doesn’t have children. The more kids the couple has who are under the age 18 and living as dependents, the longer the payment period tends to be. Similar to retirement, the court may review your case once all your children qualify as adults (or when you no longer have dependents).

Request For Review Order

A “Review Order” allows the court to review your case after a specific number of years. This can occur when a spouse/partner isn’t working but is expected to find a job following some training or education. A review order gives you a chance to prove that you deserve a better arrangement without having to show evidence of a major change in your or your spouse’s life.

When it comes to a separation or divorce, keep in mind that there aren’t as many guarantees as with child support or other more serious legal requirements. For instance, a review order doesn’t mean the court will automatically modify your spousal support payments. It simply allows you to get your case considered for review.     

Can You Avoid Paying Alimony/Spousal Support? 

Generally, a relationship must qualify as “spousal” to result in this type of legal support. Under the terms of Canada’s Divorce Act, this only applies to married couples. On the other hand, the Family Law Act states that a “spouse” refers to:

  • Couples who are ending a relationship that resembles a marriage (lasting 2 years or more).
  • Couples ending a marriage-like relationship of less than 2 years, where one or more children are living with either party as dependents. 
  • Married spouses.

Spousal or partner support can get highly expensive over time, particularly after the end of a long relationship and messy separation/divorce. That said, there are several ways to get your alimony payments reduced or avoid them altogether, like:

Form A Cohabitation Or Prenuptial Agreement

If you and your partner aren’t getting married, signing a cohabitation agreement prevents either of you from claiming spousal support if you break up (unless specified in the contract). The same goes for a prenuptial before marriage. Once the agreement is deemed fair, both parties must honor its terms after the relationship ends. 

Prevent Yourselves From Becoming Financially Dependent

If no agreement is formed beforehand, make sure both partners/spouses have their own incomes. Otherwise, one party may be considered financially disadvantaged, which will most likely result in spousal/partner support. Share equal responsibility for your children and don’t sacrifice promotions or other opportunities for one another.

Child Support Payments And Divorce/Separation 

No matter the circumstances of the relationship dissolution, the Canadian Government prioritizes children above all other parties because they are (for the most part) financially dependent on their parents until a certain age. As such, they are legally entitled to receive support after a divorce or separation.

Important Things To Know About Child Support:

  • Federal & Provincial/Territorial Laws – Prior to making arrangements for a divorce or separation, don’t forget that laws vary from region to region. So, if you and your spouse/partner don’t come up with a fair child support agreement, the court may use federal or provincial/territorial regulations to decide for you.  
  • Payment Rules – Normally, child support payments are sent to the qualified parent. That said, under specific circumstances, that court could order that parent to give the money directly to their child if they’re over the age of majority, provided their family situation makes them eligible.
  • Children Come First – Parents are legally required to support their children, even if the relationship ends. While you can arrange child support in court, the legal fees and time involved could be hard on your family. If you and your spouse/partner don’t get along, family justice services like mediation can help.

For more information about child support, visit the Canadian Department of Justice.

How Much Can You Expect To Pay In Child Support?

Similar to spousal/partner support, the amount that you’ll have to send your former partner in child support payments is based on several factors. Under the country’s Federal Child Support Guidelines, the table amount is determined by:

  • Number & Age of Children – According to the Divorce Act, you must support any child that’s below the age of majority and still a dependent. This includes adopted children who are underage or dependent due to a disability, sickness or other cause. Suitable post-secondary studies may be accepted too. The more children/dependents involved, the more child support you could pay over time.
  • The Province/Territory Where the Parent Lives – There’s a separate federal child support payment table for each province/territory, which is set according to regional tax laws. Plus, the age of majority is 18 in some areas and 19 in others. If parents live in different provinces, territories or countries but majority or shared custody is arranged, the paying parent may be subject to their area’s laws too. 
  • The Paying Parent’s Annual Income Before Tax – During cases like shared custody, financial hardship or other scenarios, both parents’ incomes may be used to calculate child support. Terms can also vary according to a child’s age, financial means or support needs. Either way, all household incomes could be reviewed. The parent with the highest income often becomes the paying parent.

With child support, there are many different rules that apply and financial documents to provide. To get a basic estimation of your future child support payments or learn the regulations that apply to your area, relationship status or family family situation, consult the Department of Justice’s Child Support Table Look-Up.

Spousal Support FAQs

Are common-law partners entitled to spousal support after a divorce/separation?

Remember, specific divorce and separation rules apply to every province/territory, as well as every marital or nonmarital situation. Different guidelines are used when a couple is separated but not divorced and if they’re married, rather than in a long-term relationship that resembles marriage (otherwise known as a common-law partnership).  For example, Quebec law states that unmarried common-law couples are “de facto spouses” and therefore aren’t entitled to any spousal support during a separation, while married couples could be following a divorce. 

Do I have to claim my spousal support or alimony payments as income?

Like with most forms of government mandated payments in Canada, you’re legally required to declare your spousal support as income on your tax returns. Thankfully, whatever payments you claim are tax-deductible.

Can I deduct my spousal payments from my income?

Yes. Spousal or partner support can be expensive but if you’re the one ordered to make payments, you can deduct them from your taxable income.

Do I have to pay alimony or spousal support if my partner was unfaithful?

Sadly, yes. You may still be obligated to pay spousal/partner support during a divorce or separation, even if your relationship ended due to infidelity. Just like child support and custody, property division and divorce itself, Canadian alimony laws are no-fault.

Trying To Avoid Spousal Support During A Separation?

If so, it’s probably safer to hire professional legal assistance. Though this could also involve some hefty fees, they may be a drop in the bucket compared to years, possibly decades worth of spousal or partner support payments.      

 


Rating of 5/5 based on 1 vote.

Bryan is a graduate of Dawson College and Concordia University. He has been writing for Loans Canada for five years, covering all things related to personal finance, and aims to pursue the craft of professional writing for many years to come. In his spare time, he maintains a passion for editing, writing screenplays, staying fit, and traveling the world in search of the coolest sights our planet has to offer. Bryan uses the BMO Cash Back Mastercard to earn cash back on everything from boring bill payments to exciting excursions. He is also a strong saver, holding both a TFSA and an RRSP account in order to prepare for his future while taking full advantage of tax benefits.

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