Spousal support………some basic points to consider:
Generally, there are three types of spousal support in Ontario: (1) compensatory; (2) contractual (i.e., pursuant to a domestic contract, or pre-nup, for example; and (3) non-compensatory (the most common type of support ordered by Ontario Family Courts) currently, which is generally thought of as a needs-based type of support. Need, at least on an interim basis, generally goes beyond basic necessities and is most often assessed based on the standard of living to which the claimant became accustomed during the relationship.
A recent Ontario case is illustrative: Knowles v. Lindstrom, 2015 Ontario Superior Court
In this case, the Court affirms these general principles for spousal support in Ontario:
– Unmarried spouses may be entitled to spousal support under the Family Law Act of Ontario, if they have cohabited continuously for not less than three years (section 29)
– After a separation, generally, spousal support entitlement will begin as of when the claim for support is made (which should be in writing, for certainty)
– The test for whether a married or unmarried spouse is entitled to spousal support an on interim basis (including the period following a separation) is whether the claimant can make out, on an interim basis, a prima facie need for spousal support pending the outcome of the case or trial (typically on a non-compensatory basis) in other words, can he or she satisfy the Court that, when the trial is heard, if necessary, she will likely be determined to be entitled to spousal support?
– If the parties entered a domestic contract before the separation, that is often considered for whether a claimant is entitled to spousal support (i.e., contractual support)
– Generally, the amount of spousal support the Court will order is based on the Spousal Support Advisory Guidelines in Ontario (but they are not the law in Ontario, but rather a guideline oft-utilized by lawyers and the Court to try to assess spousal support amounts) ultimately, the Court has discretion to determine any amount of interim spousal support, based on the factors in each case
– If the payor earns non-taxable income (i.e., does not pay tax on the income), the Court will typically gross-up the payors income to calculate spousal support
If you are separating, or may be separated, you should speak to a qualified lawyer about your spousal support position to ensure that you are properly protected and correctly pursue your position, legally.
