The law views spousal relationships as economic partnerships and when the partnership breaks down the person with more money may have to support the other. At the same time, the law expects adults to try to be self-sufficient and to look after their own needs to the best of their abilities.
During a relationship, one person often spends more time looking after the home and the children. That person does not have a chance to earn a lot of money in the workforce, or to become more skilled and more highly paid in a trade or profession, or to pay into a pension plan over a long period of time. When a relationship ends, that person is at an economic disadvantage.
To decide on the amount of support that should be paid by one spouse to the other, the law says that judges must look at how much the person asking for support needs to live, and how much the other person can pay. A person may claim support to help him or her become financially self-sufficient or to keep from ending up in serious financial difficulty.
In general, people who have been together for a short time will only be able to get support on a short-term basis. Support payments may give a person a chance to go back to school or train for a job.
After years out of the workforce or years in low-paying jobs, some people may never be able to become financially self-sufficient. Their spouses may have to pay long-term support for them.
Here are some of the things that are taken into account:
the age and health of the couple;
available employment opportunities;
the effect being in the relationship had on employment opportunities;
the contribution made to family care during the relationship;
the contribution made to the other person’s career;
the family’s standard of living before separation;
the time it will take for the person to become self-sufficient; and
the need to stay at home to take care of young children or adult children with a disability.
You can agree on the amount of support that will be paid and for how long it will be paid and include this in your separation agreement. If you cannot agree, you can go to court and let the court decide.
Spousal support guidelines are available to help you figure out the amount of support that should be paid. These guidelines apply to couples who have been married and are not mandatory. They provide a range of suggested spousal support amounts based on the age of the spouse receiving support, the length of the marriage and the presence or absence of child support. These guidelines were designed to assist you in reaching agreement about a support amount based on the amounts awarded by judges in similar cases.
How can I figure out how much support to ask for?
You need to write down details of your income and expenses. List how much you spend on food and household expenses and things like transportation, medication, dental bills, clothes, dry cleaning, haircuts, car expenses and insurance, home insurance, vacations, gifts, entertainment, pet food and veterinary bills. All these expenses can be included when figuring out how much support you need. You can also ask your lawyer to explain how the spousal support advisory guidelines might apply to your situation. Simple spousal support calculations can also be prepared on the following website: http://mysupportcalculator.ca.
I am 55 years old. The court ordered my spouse to pay me $500 every month. That is fine for now, but with inflation and the price of everything going up, I am worried that it won’t be enough in five years. Is there anything I can do?
Yes. You can ask the court to add a cost of living adjustment to your court order. This ties your support payments to the Consumer Price Index for the area where you live. Your support payments will then change every year to match the rate of inflation.
Common law couples
We’ve lived together for ten years. Most of that time, I’ve been at home taking care of our four kids. If we separate, can I get support for myself?
You can ask for support. Common law spouses have a right to ask for support for themselves if they have lived together for more than three years or if they have lived together for less than three years but have had or adopted a child together.
Enforcing your support payments
All support orders made in Ontario are automatically filed with the Family Responsibility Office (FRO). FRO processes child and spousal support payments to help ensure that the support gets paid on a regular basis and takes action to enforce support orders that are not being paid on time or in full.
Automatic Support Deduction
When a court orders a person to make regular support payments, the court also makes a support deduction order. The court sends the support deduction order to FRO and FRO writes to the person’s employer (or other income source) telling the employer to deduct the amount of the support from the person’s regular pay cheque. The employer must then send the money to FRO. FRO, in turn, sends the money to the person entitled to the support under the court order.
If your support arrangements are set out in a domestic contract (marriage contract, separation agreement, cohabitation agreement or a paternity agreement), rather than a court order, you can still have your support payments processed through FRO. To do so, you must file your domestic contract with the court according to the procedure in the Family Law Act and the rules of court. Once the domestic contract is filed with the court, it can then be filed with FRO and FRO can collect your support payments for you.
Withdrawing from FRO
Some people do not want their support payments processed through FRO. If both the payor (the person who owes the support) and the recipient (the person who is to receive the support) agree, they can withdraw from FRO. They can do so by sending a Notice of Withdrawal, signed by both of them, telling FRO that they would like to withdraw their support order, or domestic contract.
FRO will close the case once it receives this notice. However, if the recipient is receiving social assistance and the support order is assigned to the social assistance agency, the agency providing the social assistance must also agree to withdraw the support order from FRO. You should confirm if any social service agency is involved and whether their consent is also required. You can do this by completing and sending a Confirmation of Assignment to the social service agency. The agency will advise if they are involved.
If the payor is not in compliance with the support order, and owes support monies, the recipient can decide to withdraw the support order from FRO without the agreement of the payor and enforce the support order directly. The recipient can do this by sending a signed Notice by Support Recipient of Unilateral Withdrawal form to FRO.
Once FRO receives this notice it will close the case and the recipient can enforce the support order. If the recipient is receiving social assistance and the support order is assigned to the social assistance agency, the agency providing the social assistance must also agree to withdraw the support order from FRO.
There is a fee charged to both the payor and the recipient if the support order is re-filed with FRO at a later date.
Enforcement of support payments that are not being made on time or in full
If you withdraw your support order from FRO, and the support payments that are owed to you are not being paid on time or in full, you can take legal action on your own behalf to recover the money you are owed. You can:
request a default hearing, at which the payor must explain to a judge why the support is not being paid. If the judge is not satisfied with the explanation, the judge can order that support be paid. In extreme circumstances, the judge can send the payor to jail for failing to pay support;
garnishee the payor’s wages and bring the payor’s employer to court if the employer disobeys or ignores the notice of garnishment;
garnishee the payor’s bank account;
seize the payor’s RRSP;
register the support order as a charge on the payor’s house, other real estate or personal property; or
file a writ against the payor’s property.
Bringing these legal actions may be time-consuming and expensive and you may need a lawyer to assist you. However, you do not have to enforce your support payments yourself. FRO can act on your behalf to recover the money that is owed to you. FRO can take all of the steps outlined above to collect your support payments. In addition, FRO can:
request records containing information about the payor’s employment and financial circumstances and address from any person or public body;
bring the payor’s employer to court for disobeying or ignoring a support deduction order;
deduct money owed to the payor by the federal government (including income tax refunds and Employment Insurance benefits);
report the amount of support owed by the payor to a credit bureau;
intercept the payor’s lottery winnings, if the prize is over $1,000 and the lottery was in Ontario;
suspend the payor’s driver’s licence; or
suspend the payor’s federal licences or privileges, such as a pilot’s licence or a Canadian passport.
If you have withdrawn from FRO, you can re-file your support order or domestic contract if you have problems with your support payments later and decide that you want FRO’s assistance.
You should be aware that FRO does its job best when you keep the office up to date. Always make sure that FRO knows your most current address and telephone number, and if you find out that the payor has moved or has changed jobs, you should let FRO know, in case the payor has not notified the office.
In order for FRO to enforce your support payments effectively, it is also important that your support order or domestic contract be clearly written. For more information on this, you may find it helpful to refer to the FRO website at www.theFRO.ca.