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One of the scariest phrases, for many who separate, is “Spousal Support." Whether you are the one who may need to pay spousal support, or you are the one who has a need to receive spousal support, the issue often results in tremendous stress, and feelings which include resentment, fear and a lack of appreciation.
Spousal support is definitely one of the more complex areas of family law and I would recommend that you get legal advice no matter which side you find yourself on. Under the Divorce Act, a person may claim spousal support if they have been married. This does not necessarily mean they will be successful, only that they are able to make the claim. Under the Family Law Act in Ontario, an unmarried person may also make a claim, if the parties have lived together continuously for a period of three years, or they are the parents of a child together and are in a relationship of some permanence. The questions clients ask normally are:
1. Am I entitled to spousal support? (or do I have an obligation to pay?)
2. How much do I have to pay? (or what can I expect to receive?)
3. How long do I have to pay? (or how long will I receive support?)
The issue of entitlement is the first question to be answered, and I believe, the most complex. The basis of a need for spousal support can be compensatory, to offset one who would otherwise suffer an economic disadvantage, non-compensatory, which is based on need, and contractual. Again, I stress the importance of receiving legal advice for your particular situation. If entitlement is established, there is a tool which can be of assistance with the last two questions.
A number of years ago, the Spousal Support Advisory Guidelines (referred to as the SSAGs) were created, to help to provide a framework for quantum of support and duration. There are limitations with the SSAGs, which are set out in the very detailed revised Users Guide, and of course there is now years of case law, which also must be considered. With that backdrop in mind however, the guidelines provide a range for the quantum of spousal support and a range for the length of time for payment. This can help the parties to negotiate a deal they consider to be fair. In a mediation, it can be very helpful to explore each party’s budget and their hopes for the future. For example, it may be that the recipient has a retraining plan to be able to obtain a higher paying position. In that case, spousal support may be high for the retraining period, followed by a lower amount once retraining is complete, to ultimately terminate after a set period of time. The scary part is often the “not knowing”. The payor wants to know when he/she can stop paying and plan for his/her own future. The recipient wants to know that he/she will have the financial ability to pay his/her bills. Remember that when you separate, two homes are more costly than one. Clearly, emotions can run high when contemplating support. And this is one more great reason to consider the services of an experienced professional mediator who can help both parties navigate these challenges.