Spousal support qualification, if parties are married, goes into effect the moment the marriage takes place, pursuant to the Divorce Act, which is federal legislation.
However, spousal support is also available, even though parties are not married, if there is a qualification of how long they lived together (3 years or more), or whether they have a child, and they had a relationship of “some permanence.”
There can be significant arguments about qualification when people are not married, because their views as to whether they were “cohabiting” or whether they had a relationship of “some permanence” may be very much in dispute.
Mississauga family lawyers or family mediators may assist the parties in understanding the factors used in deciding whether an agreement can be reached about “spousal support qualification.”
Calculating Spousal Support
Neither the Federal Legislation nor the Provincial Legislation has a specific chart that must be used to calculate spousal support.
However, there are computer programs, such as DivorceMate, which show what a reasonable range of spousal support (low, middle and high) which a court should consider if presented with these calculations. The parties can use this DivorceMate calculation, in discussions, negotiations, or family mediation. Most family lawyers or divorce lawyers use DivorceMade software, or a comparable software program, to make spousal support calculations.
It looks at factors such as the length of the relationship, the incomes, child support payable, and many other factors. The parties can also reach an agreement that is different than these calculations, and decide whether the payments are made on a periodic basis (usually monthly – these payments being tax-deductible to the payor and taxable to the recipient as income) or by way of balloon payments (“lump sum” – these payments cannot be tax-deductible to the payor nor taxable to the recipient).
These payments should be described in either an agreement or court order, if the parties wish, for income tax considerations. If no agreement or no court order sets out the payments, Canada Revenue Agency (CRA) will not allow for the usual tax deduction to the payor nor tax imposition to the recipient.
The drafting of agreements can be done by Mississauga family lawyers, or the parties may hire a family mediator to assist in this process.
Enforcing Spousal Support
A provincial government agency, The Family Responsibility Office (FRO), will collect spousal support as required by court orders, unless there is an agreement of the recipient to receive the payments directly. Even when there is an agreement (domestic contract or Separation Agreement), the recipient may insist that the payments go through the Family Responsibility Office.
The Family Responsibility Office directs that the employer of the payor make the payments to it, and it pays out the spousal support it receives to the recipient, or to a government agency if the recipient is receiving government assistance.
The Family Responsibility Office has authority to collect any delinquent payments (“arrears”), by garnishment from the employer (up to 50% of the gross pay), to seize bank accounts or other payments due to the payor, to ask the Ministry of Transportation to suspend the payor’s driver’s licence, and to ask a court to put the payor in jail. These are situations where the payor should consider legal advice, and/or consider engaging a family mediator to work out an agreement and a payment plan.
Retroactive Spousal Support
The word “retroactive” applies to payments in a situation where the recipient qualified, but the payments were not actually being made. It is a payment made now, for spousal support that may have been properly calculated and was payable in the past.
These spousal support payments, if made by one lump sum, are not ordinarily tax-deductible to the payor, nor taxable to the recipient. Thus, in a situation of a lump-sum payment, there could be some calculated reduction because it is not tax deductible to the payor.
Calculating retroactive spousal support amounts involves looking at numerous factors, including whether the recipient was requesting or requiring spousal support at that time. Mississauga family lawyers and/or family mediators may be of assistance to the parties in this process.