NOTICE TO READER
The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Veena Pohani.
How do I know if I am entitled to Spousal Support?
This is question which requires contemplation of many different factors. The courts generally consider three principles before making an award of spousal support. The courts consider entitlement, quantum and duration. What this means is that the Courts will look at whether a spouse is entitled to spousal support depending on a number of factors enumerated in s.33 of the Family Law Act. Generally they will look at the length of the marriage, the contribution provided by the recipient spouse, the income earned, the difference in income. Now spousal support has become much easier to advise clients on how much they will receive using the Spousal Support Advisory Guidelines or the SSAG’s. These SSAG’s are tools that are generally accepted by all levels of courts that tell us how much the support payor should be paying depending on a range from low to high and for how long.
The question of how long spousal support has to be paid depends on the life of the relationship, the health of the parties, the income, the number of dependants, and the contribution to the relationship.
Is spousal support tax treated?
Spousal support that is payed periodically is subject to tax treatment. This means that the support payor will deduct it from his income, while the recipient will have to include it in her income and will be taxed on it.
Spousal support that is paid lump sum is not subject to the same tax treatment. There is no deduction for a lump sum payment of spousal support.
Canada Revenue Agency will not allow tax treatment of spousal support unless it is pursuant to a formal executed separation agreement or court order. This means that voluntary payments made by the support payor to the recipient are not entitled to be deducted for income tax purposes unless there is a formal agreement in place that must be sent to CRA.
Child Support is not tax deductible.
I am in a same sex relationship. Am I entitled to Spousal Support?
Because of relatively recent changes to the Divorce Act, same sex couples who marry are covered by the definition of “spouse” and are, therefore, entitled to apply for spousal support if the marriage breaks down. Both same-sex and opposite sex couples who meet the definition of spouses under the Family Law Act (persons who have cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child) are eligible to apply for spousal support under the Provincial Legislation. The Act establishes an obligation on all spouses and same-sex partners to provide support for themselves and for the other partner in accordance with need to the extent that he or she is capable of doing so.