When Does Spousal Support End

Introduction 

Family law lawyers are often asked how long spousal support is payable for. Spousal support is a highly discretionary area of law, meaning that both quantum (amount) and duration (length of time spousal support is payable) are highly dependent on the facts of a particular marriage or common law relationship.  This blog entry will focus on ‘duration’, i.e.: the appropriate length of time for which spousal support is payable. 

When determining the duration of spousal support, the first thing that family law lawyers must consider is the objectives for spousal support. For married spouses, these objective are identified in Section 15.2(6) of the Divorce Act, which stipulates that an order for spousal support ought to: 

• recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
• relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
• in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

For common law spouses, Section 33(8) of the Family Law Act provides similar objectives for spousal support. And, according to a decision of our Supreme Court of Canada, Bracklow v Bracklow [1999] 1 SCR 420, “No single objective is paramount; all must be borne in mind.”

Since 2008, spousal support has been calculated with reference to the Spousal Support Advisory Guidelines (‘SSAGs’). The SSAGs provide family law lawyers with a framework for determining duration and quantum of spousal support. The SSAGs are not binding, but if a family law judge makes a spousal support order that deviates from the SSAGs, they must justify their reasoning.

So, armed with:

1. the objectives identified in the relevant Acts, above; and 
2. the SSAGs, 

we begin our evaluation of the duration of spousal support in Ontario.

Child Support and Spousal Support are different, but interconnected 

It is important to understand the relationship between child support and spousal support. As stated at Section 38.1(1) of the Family Law Act: “Where a court is considering an application for the support of a child and an application for the support of a spouse, the court shall give priority to the support of the child in determining the applications.”

In cases where both child support and spousal support are payable, child support impacts both the quantum and duration of spousal support. In cases where both child support and spousal support are payable, the SSAGs require a ‘With Child Support’ calculation, resulting in a lower range of spousal support, than in circumstances where no child support is payable. Once all ‘children of the marriage’ have aged out of child support, the duration of spousal support might be extended, to make up for the reduced spousal support that the recipient received while the parties were raising children. 

First, Will there Be Any Spousal Support At All?

Before we get into consideration of the length or quantum of spousal support, the first question a family law lawyer must ask is whether there is entitlement to spousal support. To establish entitlement, family law lawyers will look into various factors, such as the: 

1. length of the relationship, 
2. roles adopted by the parties, 
3. differences in the parties’ incomes, 
4. differences in the parties’ levels of education, and 
5. ages of the parties  at the time of separation. 

If there is entitlement, family law lawyers move forward to next steps.

Termination of Child Support vs. Termination of Spousal Support 

Whereas child support terminates when a child ceases to be a ‘child of the marriage’, there is no such bright line rule when it comes to the termination of spousal support.

In short and mid-term marriages, the SSAGs offer a range with respect to the duration of spousal support. We will address the definition of short and mid-term marriages below.

In long term marriages, or marriages where the ‘rule of 65’ applies, spousal support duration under the SSAGs is indefinite. We will address the definition of long-term marriage and the meaning of the term “indefinite” below.

Relationship Between Duration and Quantum 

The SSAGs do not identify a specific quantum or duration of spousal support. Rather, they offer:

• a range for the quantum of spousal support, from low, mid, to high, and
• a range for the appropriate duration of spousal support.

The SSAG are programed to consider certain factors, such as the parties’ incomes, ages, and length of relationship, in arriving at these ranges.  

Generally, relationships of a longer duration generate spousal support payments of a longer duration. 

The presence of young children and the high dependency of the primary child-caring party may also generate longer durations.

Self-Sufficiency

If there has not been economic disadvantage arising from the relationship, time-limited or ‘transitional’ support is often awarded.

One of the stated objectives of a spousal support order pursuant to Section 15.2(6)(d) of the Divorce Act, is to “in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.” In cases where economic dependency has been established, the Supreme Court of Canada has rejected the suggestion that there is an absolute obligation on the recipient spouse to become self-sufficient (Moge v Moge, [1992] 3 SCR 813). 

However, the longer the relationship, the more intertwined spouse’s financial lives become. In long-term relationships, or relationships where the recipient spouse is nearing retirement age at separation, the recipient spouse may be unable to become self-sufficient, and therefore, indefinite support may be ordered. 

‘Self-sufficiency’ is not only measured by income and employability, but also by the recipient spouse’s wealth (assets vs. debts). In circumstances where the recipient spouse receives a large equalization payment (property settlement) under Part 5 of the Family Law Act, there is an expectation that the recipient spouse will utilize their assets to support themselves or generate income. For example, in the case of LeVan v. LeVan, 32 R.F.L. (6th) 359, where the recipient spouse was expected to eventually receive an equalization payment of $5.3 million, temporary spousal support was terminated upon a full payment of the equalization payment. As you might imagine, the wealth of the recipient spouse would, generally, have to be substantial in order to terminate an otherwise existing spousal support entitlement 

Duration of Relationship and Duration of Spousal Support 

Per Section 15.2(4)(a) of the Divorce Act, ‘the length of time the spouses cohabited’ is one factor the court shall take into consideration, when making an order for spousal support. 

1. Short term marriages (0 – 5 years)

A marriage of 5 years or less is considered a short-term marriage for the purposes of the SSAGs. At the end of a short-term marriage spousal support is generally time-limited in duration. It is intended to get the recipient spouse ‘back on their feet’ after the end of a short relationship or marriage. Some recipient spouses may utilize this time for post-secondary retraining. 

For example, in the case of Tailor v. Tailor, 2008 CarswellOnt 5866, 59 R.F.L. (6th) 316 (S.C.J.), the court ordered spousal support payable for a period of 20 months, after a 10-month cohabitation period. 

An example where the court awarded time-limited spousal support after a 5.5-year relationship is found in Ammar v. Smith, 2021 ONSC 3204. In Ammar, the Court ordered time limited spousal support payable to the wife for one year. The fact that the wife would receive a significant property award, and the judge’s dissatisfaction with the wife’s plan to earn less than minimum wage, spurred the judge to order spousal support payable at $656.00 a month for one year, to be reduced to $1.00 per month after the first year.

Although the length of the relationship provides some guidance to family law lawyers on the issue of duration of spousal support, sometimes short relationships can have long term consequences, and sometimes those consequences are outside of the parties’ control. As the Supreme Court of Canada noted at para 42 of Bracklow: “A spouse’s lack of self-sufficiency may […] arise from […] sources, like:

• the disappearance of the kind of work the spouse was trained to do […] or […];
• ill-health.” 

An example of a case where the recipient spouse was awarded longer term spousal support after a one-year marriage is found in Spurgeon v. Spurgeon, (2001), 15 R.F.L. (5th) 440. In Spurgeon, the wife was in receipt of weekly spousal support payments of $350.00 from her first husband, on the condition that she remained unmarried. She remarried at 56 years old, and the marriage to her second husband lasted only one year. The trial judge awarded the wife one-time lump sum spousal support of $10,000.00, relying heavily on the short length of the marriage to the second husband. The wife appealed this aspect of the decision, and the higher court found that, “While the length of marriage is of some relevance, even a brief marriage can give rise to lengthy and perhaps even permanent support obligations.” The second husband was ordered to pay weekly support to the wife in the amount of $175.00 until the wife’s 65th birthday. 

2. Mid-term marriages (5 – 20 years) 

There is a greater tendency in case law, for family law judges to order time-limited spousal support, in mid-term marriages. 

In the case of Davies v. Quantz, 2010 ONCA 896, the total cohabitation period of the wife and husband was 18 years and 3 months. In the Davies case, both the wife and husband were very highly educated. During the first part of the parties’ relationship, the wife pursued her post-secondary education, and built up her career and clientele in the Montreal area, while the husband pursued his medical career in London, Ontario. After the parties’ children were born, the wife sold her book of clientele and moved from Montreal to London. She did not return to remunerated employment until after the parties separated. Justice Marshman found at trial that spousal support should be time limited. Justice Marshman made a finding that although the relationship was over 18 years, the period that gave rise to the wife’s entitlement for spousal support was only 10 years. Justice Marshman mentioned the wife’s duty to become self-supporting or “eventually readjust her lifestyle” over time. On the facts of the Davies decision, Justice Marshman ordered that spousal support be time-limited to a period of 8 years, which was upheld by the Ontario court of appeal. 

In the case of Fisher v Fisher, 2008 ONCA 11, the Ontario Court of Appeal ordered time-limited spousal support of 7 years, after a 19-year marriage. In Fisher, the husband had a much higher income than the wife upon separation, the parties did not have children of the marriage, and the wife suffered depression because of the husband ending the marriage, which kept her out of the workforce for about one year. The court relied on the wife’s youth, lack of dependents, good health, limited debt, and past work experience, as reasons for limiting the support duration to 7 years. Since the parties did not have children together, the court found the parties economic lives were less intertwined than spouses who had children together, and thus the court leaned heavily on the wife attaining self-sufficiency. 

In the case of Cvetkovic v. Cvetkovic-Gorovic, 2021 ONCA 193, the court considered a 16-year marriage where spousal support had been paid by the husband to the wife for more than 10 years. In the Cvetkovic case, the SSAGs prescribed a duration of support between six-and-a half and thirteen years. The judge made a finding that the wife had not made sufficient efforts to attain self-sufficiency and had enough equity in her home to pay off her debts. The wife’s evidence regarding her inability to maintain employment was also unconvincing to the trial judge. The judge ordered that spousal support would terminate after 10 years. The Cvetkovic case is a good illustration of the various factors the court will consider when determining when, within the duration prescribed by the SSAGs, the court will decide to terminate spousal support in a mid-term marriage. 

3. Long term marriages (20 years or longer) 

If a marriage is 20 years or longer it is generally deemed a long term marriage. For such marriages, the SSAGs prescribe an indefinite period of spousal support. Stated another way, family law judges are not inclined to put a ‘hard’ termination date on a spousal support order when the parties’ marriage lasted 20 years or more. This can be difficult to accept for some payors, especially approaching retirement age. 

Long-term marriages often create financial interdependence that cannot be disentangled in a fixed period. Unless a spousal support recipient can become self-sufficient within a fixed period, the spousal support award will be indefinite. 

Since spousal support is a fact-driven area of law, there are some circumstances where judges will award time-limited support after a long marriage. For example, in the case of Grinyer v. Grinyer, 2008 CanLII 2604 (ON SC), the parties cohabitated for a period of twenty-two years. In the Grinyer decision, Justice Gray made a step-down order for spousal support, with the recipient wife receiving $2,500 per month for the first year and $1,000 per month for the next three years, with spousal support to terminate after 4 years. Justice Gray considered the relative youth of the wife – she was in her early 40s at the time of separation – in determining she could become self-sufficient after 4 years. 

It is important to understand that ‘indefinite’ does not necessarily mean ‘forever’. Per Section 7.5.2 of the SSAGs, ‘support may even be terminated if the basis of the entitlement disappears’. The principle that ‘indefinite’ does not equal ‘forever’ is well illustrated in the case of Hancock v Rutherford, 2018 ONSC 556. The husband was seeking to terminate a Final Order for ‘indefinite’ spousal support on a Motion to Change. The judge hearing the Motion to Change ordered a set termination date for spousal support, which was appealed by the wife. One of the wife’s arguments on appeal was that the Motion judge had erred by ordering a termination date on an ‘indefinite’ order. Nevertheless, the Motion judge’s decision was upheld on appeal. 

In lieu of a termination date, family law judges sometimes order a ‘review date’ for spousal support, to encourage the recipient spouse to work towards self-sufficiency. While spousal support does not automatically terminate at the review date, the review date does allow either spouse to bring a Motion to Change after the date. 

4. “Rule of 65” 

If the length of the cohabitation period, plus the recipient’s age at the date of separation, is more than 65 years, than the ‘Rule of 65’ applies, and spousal support is presumptively payable for an indefinite period per the SSAGs. For example, if the relationship was 15 years long, and the recipient spouse was 50 on the date of separation, the Rule of 65 applies. 

The Rule of 65 does not apply to cohabitation periods of less than 5 years duration.

Irrespective of the parties ages at separation, unless the order or agreement for spousal support explicitly states that spousal support is payable until the death of the recipient, spousal support orders – even ‘indefinite’ orders – are always subject to a material change in circumstances and variation by the Court.  

Conclusion

Parties who are not properly advised of their family law rights and obligations by a knowledgeable and experienced family law lawyer, may inadvertently:

• contract to pay spousal support for a longer period than the SSAGs stipulate, or 
• accept spousal support for a shorter period than the SSAGs suggest they are entitled to.

As revealed by this blog, all aspects of spousal support are complex. They are, perhaps, some of the most unpredictable components of Family Law. Therefore, beware of trying to craft your own deal. The Supreme Court of Canada held at paragraph 53 of Bracklow that: “subject to judicial discretion, the parties –  by contract or conduct –  may enhance, diminish or negate the obligation of mutual support.” 

If you are facing a claim for spousal support, or believe you may have entitlement to spousal support, contact Bair Family Law today for a consultation. Our team of experienced family law lawyers can assist you in determining how the SSAGs apply to the facts of your case and give you a better picture of how long spousal support may be payable for in your circumstances.

Katelyn Anderson, Senior Associate Lawyer