If you are separating from your spouse, the issue of Spousal Support, or “alimony” as many people commonly refer to it, is an issue that may need to be resolved. The Spousal Support Advisory Guidelines provide a reference for calculating the amount and duration of your spousal support. However, before looking at “how much spousal support?” the first question that must be asked is, “is there entitlement?”
Entitlement to spousal support is a legal concept, and entitlement can be established in one of two ways; on a “compensatory” basis, or a “non-compensatory” (or “needs” basis). In some cases, a spouse may meet both aspects of the entitlement threshold.
Once entitlement is established, you have to look at the amount and length of spousal support. The Guidelines do not suggest a definitive number, they will only provide you with ranges for the amount and duration based on the length of your marriage and/or cohabitation. For spouses who were married, the formula will consider the entire period of cohabitation, this includes the time before the marriage when you started living together.
There are two types of spousal support formulas in Ontario. These two basic formulas are the Without Child Support formula and the With Child Spousal formula.
There are many variables that impact the amount of spousal support paid, including whether there are children and child support is being paid, whether the children are adults, the length of the relationship, any special or extraordinary expenses being paid for the children, and incomes of the parties to name a few.
There are calculators and other software programs available that perform the complex calculations needed to determine spousal support. We recommend that you consult with an Ontario spousal support lawyer to get an accurate representation of your rights and obligations.
Without Child Support Formula
This formula relies heavily on the actual length of the relationship, meaning the amount of support and duration will increase with the length of the relationship.
The support duration ranges from half to one year for each year of marriage or cohabitation. In some cases, the length of the duration can be “indefinite.” However, this does not necessarily mean that you will have to pay support forever. Another aspect of calculation is age, and if the recipient is retired, the calculation will take into account the diminished earning capacity of each party reaching retirement age.
It is important to understand the basis for entitlement when looking at support in the Without Child Support formula. For example, although short marriages often look at non-compensatory support, in some cases (ie: spouse immigrating to a new country for the marriage), that entitlement could include some compensatory elements.
With Child Formula
This formula will prioritize payment of child support overpayment of spousal support. Child support obligations are calculated first and then are followed by spousal support calculations. For those post-separation families who have limited needs, spousal support amounts might be diminished significantly. The with child formula considers the Individual Net Disposable Income (INDI) for each party, and which parent the children are residing with.
There are six different scenarios that apply under the “With Child Formula.” Your family law lawyer will ask various questions to determine how spousal support should be determined if you have children.
Split Or Shared Custody
Having either shared custody or split custody will both lead to modifications to the basic child spousal support formula. Shared custody means that each parent will have at least 40% of parenting time with the children. This does not necessarily lower the amount of spousal support, but adjustments still need to be made to reflect an appropriate amount of spousal support. With split custody, both parents will spend a larger proportion of their income on child support, this leaves less INDI available for spousal support.
Contact Lloyd & Kemper LLP today if you have any questions about spousal support or family law.
