Do I Have to Support my Ex-Wife After Our Divorce?

That’s a question we get asked often at our law firm.  Of course, the answer is not straightforward since, under Canadian law, it depends on a multitude of factors. But if you have this same question on your mind, here are some key points that will go into the answer – though getting the advice of an experienced Family lawyer is also highly recommended.

(And note that while this blog is written to answer the question posed by a husband about an ex-wife’s potential entitlement, of course, the answers are adaptable to many different relationship and gender permutations).

What Is Spousal Support?

If you live in Ontario, spousal support is a potential legal entitlement that is governed by the federal Divorce Act for married spouses or under the Family Law Act for unmarried ones. Spousal support is simply a financial payment or series of payments made by you to your ex-wife after your separation or divorce. 

Its purpose is to:

• Recognize Economic Disadvantages: It addresses any financial disparity or economic hardship resulting from your marriage or its breakdown.
• Promote Self-Sufficiency: It helps your ex-wife become financially dependent within a reasonable timeframe.
• Recognize Her Contributions: Acknowledge the contributions that your ex-wife made to the family or your career, often at the expense of her own financial opportunities.

Note that an entitlement to spousal support is never automatic, but rather depends on several legal and factual considerations.

Legal Framework for Spousal Support in Ontario

1. Entitlement

The first question courts consider is whether your ex-wife is entitled to spousal support. As mentioned, her entitlement is certainly not guaranteed, but rather must be established based on one or more of the following grounds:

• Compensatory: If, during your relationship, your ex-wife sacrificed her career or education to support your career or care for your children, she may be entitled to compensation for the financial impact of those sacrifices.
• Non-Compensatory (i.e. Needs-Based): If your ex-wife’s financial circumstances are significantly worse post-divorce, to the point where she cannot meet her basic needs, then she may be eligible to receive spousal support from you.
• Contractual: If you have a prenuptial or separation agreement that you signed, and it includes spousal support provisions, then those terms may guide the court in setting support figure.

2. Duration and Amount

Once your ex-wife’s basic entitlement is established, the court will determine the amount and duration of the spousal support she receives. While there are no fixed rules, the Spousal Support Advisory Guidelines (SSAG) provide a useful framework, and a good starting-point for the determination. 

These Guidelines consider factors such as:

• The length of your marriage.
• The ages at which you and your ex-wife separated. 
• Whether you had any children together, and what caregiving arrangements were in place during the marriage.
• Your respective financial means, needs, and circumstances.

Generally, if you had a longer traditional marriage, or if your ex-wife was financially dependent on you throughout, it is more likely that a court will order that she gets a significant and longer-term spousal support award.

3. Factors Courts Consider

Under both the Divorce Act and the Family Law Act, courts will consider the following:

• Financial Means and Needs: The income, assets, debts, and financial obligations of both you and your ex-wife.
• Standard of Living: The standard of living you established during your marriage.
• Roles in the Marriage: If your ex-wife stayed home to care for children or otherwise support you and the family emotionally or financially, this will be taken into account.
• Self-Sufficiency: Whether your ex-wife has made reasonable efforts to become self-sufficient after your separation or divorce.
  

Related: Imputing Income – Determining the Proper Quantum of Child and Spousal Support

Timing and Changes to Support Payments

1. Lump Sum vs. Periodic Payments

If you do owe your ex-wife support, it could be paid in regular installments, or by a lump sump (as the court may decide). Lump sum payments are final and can’t be changed after-the-fact, but they are less common because it requires you to have significant funds available to pay.

2. Variation or Termination of Support

It’s important to know that even if your ex-wife is awarded spousal support post-divorce, it’s not always permanent. Courts can vary or terminate support if there is a significant change in circumstances, such as:

• She remarries or enters into a common-law relationship.
• She achieves financial self-sufficiency.
• Your income decreases significantly.

Practical Tips if You’re the Support Payor

• Keep Records: Maintain documentation of your income, assets, and any payments made.
• Negotiate an Agreement: If possible, negotiate spousal support terms through mediation or collaborative law to avoid costly court proceedings.
• Understand Your Tax Implications: Periodic spousal support payments are tax-deductible for you as the payor, and taxable for your ex-wife as the recipient, while lump sum payments are not.

In Ontario, post-separation and post-divorce obligations around support are complicated, and will vary according to your unique circumstances. If you’re facing questions about what spousal support you might owe, feel free to consult our firm to explore your obligations and options.