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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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Old 10-20-2009, 04:43 PM
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Default Will I be Paying Spousal Support?

Have been separated for just under two years now where I am paying my legal child support payments but no spousal support payments to her. We have agreed to a separation agreement where she has the kids and I have visitation rights anytime I can when I am in town. i plan on starting devoice proceedings, and have been wondering if I am looking at spousal support as well? She has never in the past raised the issue due to the fact that she was working at the time of separation and she is currently employed.

Thanks for the help in advance.....
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Old 10-20-2009, 06:14 PM
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Without any details it is impossible to say. It might be a good idea for you to do some reading, then see if you have some specific questions to ask.
Try here (overview, as FAQ link): Ontario Spousal Support Obligations
and here (details): Spousal Support
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Old 10-20-2009, 06:35 PM
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I should have explained a bit better.... What I was getting at was; is there a time limit to asking for and receiving SS? Considering it's been two years and she has never asked for any, can I still end up paying when we do reach a final divorce? Or will a judge look at this and say that the status quo will remain?
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Old 10-21-2009, 01:38 AM
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In some provinces and territories, if you wait too long after your separation or divorce to make a claim, you may lose all your rights to share in family property or spousal support. Check with a lawyer or a provincial/territorial family law publication. It seems to depend on where you live in Canada.

http://www.justice.gc.ca/eng/pi/fcy-...ney-finan.html
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Old 10-21-2009, 01:44 AM
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Spousal Support in Canada

Author: Joel Miller for The Lawyers Weekly
Other Topics Who is entitled?

The Divorce Act in Canada says that spousal support is paid by one person to another if they're married at the time or were previously married to each other. Each of the provinces (which includes the "territories") have their own legislation providing for spousal support even if the "spouses" aren't, and never were, married to each other but fit the particular definition of a spouse. Generally that includes people if they're the parent of a child born of the relationship or lived in a spouse-like relationship ("common-law partner") for a specified period of time, and make their application within the time set out. (There's no time limit to seek support under the Divorce Act.) You need to see what legislation applies if you're not under the Divorce Act. Being in a same-sex relationship doesn't matter under the Divorce Act because if you're married you qualify. Most provincial legislation specifically covers same-sex relationships in the same way as heterosexual relationships, and if they don't, any attempt to bar same-sex partners from the same spousal support as other common-law partners is unconstitutional.
What is it for?

If you're a "spouse" you need to fit yourself into particular legislative objectives to be entitled to support in Canada. While the stated objectives differ from one province to another, for practical purposes spousal support orders should fit one of these objectives - as set out in the Canadian Divorce Act but generally followed one way or another by provincial legislation:
  • Recognize any economic advantages or disadvantages to the spouses arising from the relationship or its breakdown
  • Apportion any financial consequences arising from the care of any child of the relationship over and above the child support arrangement
  • Relieve any economic hardship of the spouses arising from the breakdown of the relationship
  • Promote the economic self-sufficiency of each spouse, as far as practical, within a reasonable period of time
Fitting into any one of these categories is sufficient and it's fair to say that Canadian courts today will find reasons to pay spousal support more readily than not. The principles apply whether the Canadian spouses were in a same-sex or heterosexual relationship and whether it's the male or female who applies (although many Canadian Divorce lawyers and litigants feel that a male in the same situation as a female will have greater difficulty getting the same size award).
Three types of spousal support in Canada:

The Supreme Court of Canada held that there are 3 types of support:
  • Compensatory support - to address the economic advantages and disadvantages flowing from the marriage or the roles adopted in the marriage;
  • Non-compensatory support - to address the disparity between the needs and means of the parties upon marriage breakdown; and
  • Contractual support - to reflect an express or implied agreements between the parties concerning their respective financial obligations upon the breakdown of the marriage.
General observations

In their book "Annual Review of Family Law, 2004" James McLeod and Alfred Mamo make 13 "general observations" with respect to what courts say and do about spousal support:
  • Canadian courts will uphold reasonable support agreements made by the parties
  • There doesn't need to be any "causal connection" between the need for support and anything which occurred in, or is related to, the Ontario marriage
  • Support will generally be ordered if a spouse can't maintain a lifestyle similar to that during the relationship even if there hasn't been any disadvantage as a result of the roles adopted in the marriage
  • Spousal support is usually paid monthly
  • Duration of support depends upon the purpose of the support order
  • Support is limited by the ability of the payor to pay it
  • Dependency due to illness arising during the relationship may make support time-limited unless you can show there's an economic disadvantage resulting from the roles adopted during the marriage
  • The principles in the Divorce Act apply subject to specific wording to the contrary in a particular province's legislation
  • The same principles that apply whether spouses are married or unmarried
  • If support is "compensatory" there's no general principle of "clean break" or deemed "self-sufficiency"
  • Forming a new relationship with another person doesn't disentitle a spouse to support
  • Divorcing Spouses must accept, at some point, the consequences of their own economic decisions if they were taken for personal, not family, reasons
  • Generally the court handling the divorce should wait until the property division has taken place before making a final decision regarding support.
What if there are kids?

It's clear that Canadian spousal support should be considered after child support has been dealt with. Sometimes that means that even though the applicant spouse really needs support, there simply may not be enough money left for the payor spouse to pay it. The court will then grant less for spousal support than it would if there weren't children. But when child support ends the recipient spouse can ask the court to readjust the spousal support because that obligation is no longer there.
Can it be changed?

Yes. Generally you'll need to show that there's been a material change in circumstances and prove the new situation, but spousal support can be, and is often, varied.
Pretty clear, huh? But that's not all.
Spousal Support Advisory Guidelines

In January 2005 Spousal Support Advisory Guidelines were introduced. These aren't legislative requirements directing judges what to do and are specifically NOT intended to replace the various principles and legislation referred to above. But they were created to establish a general outline of what the courts dealing with the divorce seem to have awarded in broad categories over recent years. They're not a Table, so you can't look up the amount. They're 2 separate formulas (for whether there are or aren't children) to establish a general range of suggested amounts to be paid, and for how long, if your situation is pretty average. They give you an idea of what would likely seem to be pretty average for people in your situation (same number of years of marriage, ages, and incomes as you and your spouse, whether or not you have children).
What does this mean for me?

If you're not a Canadian Divorce lawyer, consult one. Wherever there's a question about whether or not there should be any spousal support to pay or to receive, or how much, or for how long, you're well advised to invest in a consultation with an experienced divorce lawyer so you'll have an idea about your rights or obligations.
Joel Miller is a lawyer at Ricketts, Harris LLP in Toronto, Ontario. He can be reached by e-mail at JMiller@rickettsharris.com.
A great way to start your search for a local Canadian lawyer is at Canadian-Lawyers.ca. Go to the 'Find a Lawyer' search box that appears on the right hand side of this screen to start your lawyer search. Type in the area of law you are looking for or the name of the law firm, the city and the province that you are looking to hire a lawyer from, and click on the 'Search Now' button. This will generate a list of local Canadian lawyers.
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Old 10-21-2009, 03:05 AM
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Quote:
Originally Posted by North of You View Post
I should have explained a bit better.... What I was getting at was; is there a time limit to asking for and receiving SS? Considering it's been two years and she has never asked for any, can I still end up paying when we do reach a final divorce? Or will a judge look at this and say that the status quo will remain?
If she can support herself and raise the kids she has no grounds to ask for SS. This is clearly evidenced in the last 2 years where she has fully supported herself.

I would suggest you pass this by a family lawyer - they offer free 1/2 hr. consultation.
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