OK, you're 50ish years old. You just got your first tattoo and you're thinking about a new sports car. Maybe some plastic surgery. A mid-life crisis can be pretty expensive, but at least when you buy most new toys, you don't have to keep paying for the old ones. The same is not necessarily true when your mid-life crisis includes a new spouse. In Ontario, for example, the longer the marriage and older your spouse, you could end up paying spousal support indefinitely. Behold, the "Rule of 65".
Spousal support, also known as alimony or spousal maintenance, is a form of financial support provided by one spouse to the other after the breakdown of a marriage or common-law relationship. In Ontario, spousal support is governed by both the Divorce Act and the Family Law Act and is intended to address the economic consequences of the breakdown of a relationship.
Spousal support may be ordered to compensate one spouse for economic disadvantages or opportunities lost as a result of the relationship. For example, if one spouse gave up their career to care for children or to support the other spouse's career. Spousal support may also be ordered when one spouse has a significantly higher income than the other and the lower-earning spouse requires financial assistance to maintain a reasonable standard of living. The amount and duration of spousal support generally depends on a variety of factors, including the financial circumstances of each spouse, the length of the relationship, and the roles each spouse played during the relationship.
In Ontario, spousal support is not automatic and must be requested by the spouse who is seeking support. The spouse seeking support must demonstrate that they are entitled to support based on their financial circumstances and the circumstances of the relationship.
There are two scenarios where a marital breakdown can lead to indefinite spousal support:
when the marriage has been 20 years or longer in length; or
when the marriage has lasted five years or longer, if the years of marriage plus the age of the support recipient at the time of separation equals or exceeds 65 and (the rule of 65).
The "rule of 65" recognizes that length of marriage cannot be the only factor in determining the duration of spousal support in marriages without dependent children. Age is also a significant factor as it affects the ability to become self-supporting as we near the point of retirement.
The term "indefinite" generally means "an order for support without a time limit at the time it is made". Under the Spousal Support Advisory Guidelines an order for indefinite support does not necessarily mean permanent support at a set amount. For example, most orders for indefinite support after long marriages will be significantly modified, if not eliminated, after the retirement of the payor and the receipt of pension income by the payor and the recipient. However, nothing is automatic and any attempt to vary a spousal support amount will often require litigation.
Consider this basic example to illustrate indefinite spousal support:
Vince and Linda were married for 33 years. Vince worked his way up his father's company and now earns $100,000 gross per year, while Linda stayed home and raised their two children, Shane and Stephanie, both of whom are now grown up and on their own. Linda is 53 years of age and has no income. Vince is 55.
Entitlement to spousal support is clear on these facts and thus the Advisory Guidelines are applicable. Because the length of the marriage is over 25 years, the maximum range for amount applies — 37.5 to 50 percent of the gross income difference (capped at equalization of net incomes).
The range for amount on an income difference of $100,000 after a 33 year marriage would be:
37.5 percent X $100,000 = $37,500/year ($3,125/month)
to
50 percent X $100,000 = $50,000/year ($4,167/month)
Duration is indefinite (duration not specified) because the marriage is 20 years or over in length.
The formula results in a range for support of $3,125 to $4,048 per month for an indefinite (unspecified) duration, subject to variation and possibly review.
An award of $3,125 per month, at the low end of the range, would leave Linda with a gross income of $37,500 per year and Vince with one of $62,500. An award of $4,048 per month, at the high end of the range, would further narrow the difference in net incomes of the parties.
The above example of Vince and Linda would yield the same "default" amounts of spousal support if their ages remained the same, but the marriage had only lasted 12 years, as Linda's age (53) plus years of marriage (12) would equal 65 and entitle her to indefinite spousal support from Vince.
If you are in a similar situation to Vince and Linda, you can get a general idea of your spousal support amounts with this free spousal support calculator.
Overall, spousal support in Ontario is a complex area of family law that requires careful consideration of a variety of factors. If you are considering seeking spousal support or have questions about your rights and obligations regarding spousal support, it is important to seek the advice of a qualified family law lawyer.
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