Spousal support can be a periodic or lump sum amount one spouse pays another following separation, and is applicable in married and common-law relationships. The purpose of spousal support is to provide the recipient who is the financially dependent partner with ongoing financial security. Support can be time-limited, variable or conditional on certain circumstances. Unlike child support, parties may be able to waive their entitlement to spousal support under a marriage contract or separation agreement. You may be able to challenge a domestic contract that limits or eliminates your right to spousal support under certain circumstances.
Spousal support is separate from child support, and its calculation is not as predictable as child support. There are spousal support advisory guidelines that are published but the final award is a function of a number of variables. A court will consider the recipient’s needs, the payor’s ability to pay, and the lifestyle the spouses maintained during the marriage, among other criteria.
Where a spousal support order is in place, the payor can apply to a court to change it where the circumstances of the spouses have experienced material change, such as the loss of or reduction in income, new employment or a change in the financial circumstances of the recipient, or the remarriage of the recipient. The court will not vary the order unless it is convinced that the change is material and was not reasonably foreseeable. With so much variability, you need competent counsel to achieve the appropriate result.
Child support is ongoing periodic payments for the primary caregiver of the children. Child support is generally payable for children until they reach the age of 18 years, but can extend beyond that where the child remains a full-time student or is otherwise unable to withdraw from the care of a parent.
Similar to spousal support, parents may work out an agreement for child support as part of a separation agreement or apply to a court for an order setting the amount.
When determining the amount of child support payable, a court will generally apply the federal Child Support Guidelines established by the government, which are based on the income of the payor parent and the number of children. Sometimes determination of income is difficult because a parent may be intentionally under employed or concealing income. We have the expertise to deal with such situations.
The courts may deviate from the amount payable under the Guidelines in certain case.
Each parent is also responsible for a proportionate share of certain "special or extraordinary expenses” of the children, like post-secondary educational expenses, orthodontic expenses or summer activities, and this is on top of the base child support.
Day+Borg LLP can help you with your child and spousal support issues at any stage of the process, but we recommend a proactive approach, starting at the time you are contemplating separation. If you are separating from your spouse, call or email us now to book an appointment with one of our family lawyers.