The Factors That Influence Spousal Support

Typically in the past, families were structured in what used to be called long-term traditional marriages where the husband went out into the world every day and earned an income and the wife stayed home and looked after the children.

Even if she was employed in some capacity, she certainly generated a much less significant income than that of her husband. If a long term marriage broke up, the mother was economically disadvantaged by the circumstances in the marriage. She missed out on all these opportunities to earn income and she cannot support herself in the same standard of living she enjoyed at the time of the marriage. This is the starting premise.

For a very long time the courts were of the view that a spousal support award should be to help people get back on their feet. Then in the early 90’s, the court moved away from that view. Now the court looks at it not so much as a temporary measure, but rather as something that the disadvantaged spouse is entitled to, and that is the purpose of spousal support.

A federal statute, the Divorce Act, specifically sets out what factors are to be taken into account when awarding spousal support. We look at the current position of each spouse with respect to what they call the condition, means, needs and other circumstances. We also need to look at the relationship of the parties and the nature of that relationship, the roles they took on and the functions they fulfilled during the course of the marriage. Obviously, where there are children, the payee’s role, the wife’s role will not just be maintaining the house but also raising the children. We also need to see if there are any outstanding court orders or agreements that relate to spousal support that need to be taken into account when determining the quantum and the duration. And we also can look at the Family Law Act, which sets out similar purposes for spousal support.

How is spousal support treated by income tax regulations?

The spousal support that would be payable on a periodic basis, meaning typically on a monthly basis, from father to mother, is unlike child support in that it is tax deductible to the payer, but taxable to the payee. So, typically, the mother has to include this in her income, but the father gets to deduct payments. This is not the case with child support, which is tax neutral.

If the recipient enters a new common-law relationship or long-term relationship, can the spousal support be withdrawn?

There is no automatic termination of spousal support if the payee enters into a new relationship. That is just one factor that could theoretically be relied upon in the event that the payer wants to attempt to vary the spouse’s support order. Child support, on the other hand, is reviewable every single year, because the court has a parent jurisdiction when it comes to children, which would include courtesy acts and child support issues. If you have court order that says $1000, it is not automatically reviewable every year the way child support is. Typically, there would be a clause called COL, cost of living, in which case the award would be increased each year based on the cost of living increase.

If you, or someone you care about, is dealing with family law issues in York Region, Durham Region or Toronto, contact Andrew Feldstein & Associates for a consultation.

This article is taken from a October 09, 2007 interview with Andrew Feldstein,Family Lawyer with Andrew Feldstein and Associates, a Toronto Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.