Property Division & Equalization
Can a Third-Party Creditor Have Priority Over a Former Spouse to Jointly Held Property?
September 15, 2023
Spousal support, sometimes referred to as alimony, is financial support paid by one former spouse to another after a separation or divorce. Spousal support is most often associated with married couples; however, common-law spouses may also be entitled to spousal support under provincial law.
At Shariff & Associates, our dedicated divorce lawyers can help you understand your support obligations or entitlements and assist you with making or responding to a claim for support. In addition, we can assist couples in setting out terms around spousal support at the start or during a relationship, using a cohabitation agreement or a marriage contract. This can help to ensure both parties are on the same page and avoid costly litigation or other forms of dispute resolution in the event of a future relationship breakdown.
Spousal support is governed federally by s.15 of the Divorce Act and provincially under s. 30 and s.33 of the Family Law Act. Common-law couples, however, must apply under the provincial legislation as the Divorce Act is only applicable to married couples. Under the Family Law Act, a spousal relationship may be found in the following circumstances:
Several factors are taken into consideration to determine whether an entitlement to spousal support exists and, if so, the appropriate amount and duration of support. The terms under the federal and provincial legislation are similar and may include:
The duration of support will depend on several factors, with a particular focus on the length of the relationship.
Other factors can also have an impact. If, for example, the marriage lasted for only five years, but the spouses are both over 65 at the time of the divorce, age will be a significant factor. Since the spouse receiving support is unlikely to find new means of income through employment, a support award could be indefinite in such a case.
Spousal support awards may also be varied once they’re in place, to reflect a change in circumstance of one or both spouses. For example, if the paying spouse were to lose their job, or the spouse receiving support were to remarry, this could be a reason to request a modification to the existing order or agreement.
The Spousal Support Advisory Guidelines are used by courts, decision-makers, mediators, and other legal professionals to make a general calculation as to the amount of support. Based on factors including age, the number of children, if applicable, and the current financial means of each person, the Spousal Support Advisory Guidelines provide an approximation of a fair support award. It’s important to note the Spousal Support Advisory Guidelines are guidelines rather than mandatory rules that must be followed. Nonetheless, they can be helpful to set a base expectation or as a jumping-off point for negotiation between the parties.
When an agreement or an award is in place, it can be extremely frustrating and debilitating when the paying spouse falls behind on their obligations. While litigation or another legal process can be the most effective way to enforce payment, it can also be inefficient and prohibitively expensive for a person already facing financial distress. In these circumstances, it may be necessary to petition the Family Responsibility Office for assistance.
Ontario’s Family Responsibility Office (FRO) helps support recipients receive the support payments to which they are entitled. The FRO collects, distributes and enforces spousal support payments that have been ordered by the court or agreed upon in a separation or cohabitation agreement. Parties can choose not to engage the FRO’s services, however, the FRO has special tools available to help ensure that payments are made. If a support payor is in arrears, the FRO can garnish the payor’s wages, suspend the payor’s driver’s licence, or revoke his or her passport.
Our compassionate divorce lawyers can help you decide which path will be your best option to enforce support, and whether involving the FRO is the right step in your particular situation. If engaging the FRO is the best plan for your situation, we will ensure you have the necessary paperwork and file the application on your behalf.
The compassionate lawyers at Shariff & Associates work with married and common-law clients on spousal support issues of varying complexity. We help clients avoid delays and disputes over spousal support by creating comprehensive domestic agreements early in a relationship. If your former partner or spouse is in arrears with respect to support, we will bring our entire team to the table to protect your interests and enforce your support award or agreement quickly and effectively.
From our office in Whitchurch-Stouffville, our family lawyers serve clients in Markham, Richmond Hill, Zephyr, Uxbridge, Pickering, Ajax and Whitby. To review your family law matter with a member of our team, please reach out to us online, or call us at 905-591-4545.
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