Spousal support in contested divorce cases: What you need to know
Why Spousal Support Becomes Contested
Disagreements over Entitlement
The first and most fundamental source of dispute is entitlement itself. Under Ontario law, not every spouse is automatically entitled to spousal support following separation or divorce. Entitlement is assessed based on factors such as economic disadvantage arising from the marriage or its breakdown, the roles each spouse played during the relationship, and the goal of relieving financial hardship.
Conflicting Views on Income, Need, or Ability to Pay
Another common reason spousal support becomes contested is disagreement over income and financial capacity. Determining income for spousal support purposes is not always straightforward. Self-employment income, bonuses, commissions, investment income, corporate structures, and fluctuating earnings can all complicate the analysis.
Disputes about Length of Marriage or Roles during the Relationship
The length of the marriage or cohabitation period is a critical factor in spousal support analysis, particularly when applying the Spousal Support Advisory Guidelines (SSAGs). In contested cases, spouses may disagree about when the relationship truly began, whether pre-marital cohabitation should be included, or how interruptions in the relationship should be treated.
Emotional Factors Influencing Financial Positions
Emotions play a significant role in contested spousal support cases. Feelings of resentment, betrayal, guilt, or anger often influence how spouses approach financial negotiations. A paying spouse may view spousal support as punitive or unfair, particularly if the separation was emotionally charged. A recipient spouse may feel entitled to compensation for years of unpaid labour or emotional investment in the relationship.
Factors Ontario Courts Consider in Contested Cases
Length of the Marriage or Cohabitation
The length of the marriage or period of cohabitation is one of the most influential factors in spousal support decisions. Generally, longer relationships create a stronger case for both entitlement and longer-term support. Ontario courts often consider not only the legal marriage but also any period of pre-marital cohabitation when assessing the true duration of the relationship.
Roles During the Relationship (Income Earner vs. Caregiver)
Ontario courts place significant weight on the roles each spouse assumed during the relationship. When one spouse acted as the primary income earner while the other took on caregiving responsibilities, child-rearing, or household management, the court may find that economic disadvantage resulted from that division of labour.
Age, Health, and Employability of Each Spouse
A spouse’s age, physical health, mental health, and employability are critical factors in contested spousal support cases. Ontario courts recognize that older spouses or those with health limitations may face significant barriers to achieving financial self-sufficiency after separation.
Standard of Living during the Marriage
The standard of living established during the marriage is another important consideration, particularly in longer or higher-income relationships. While Ontario law does not guarantee that both spouses will maintain the same lifestyle after separation, courts do consider the economic reality of the marital standard of living when assessing support claims.
Financial Consequences of the Marriage or Its Breakdown
Ontario courts also examine the financial consequences arising from the marriage itself or from its breakdown. This includes career interruptions, lost earning capacity, relocation for a spouse’s employment, or long-term dependence created by family roles. Courts assess whether spousal support is necessary to compensate for those consequences or to relieve economic hardship.
Defences and Arguments against Spousal Support Claims
Challenging Entitlement
One of the most effective defences in a contested spousal support case is challenging entitlement itself. A spouse may argue that the claimant has not suffered any economic disadvantage as a result of the marriage or its breakdown, or that any disadvantage has already been adequately addressed through property division.
Arguing Self-Sufficiency or Capacity to Earn Income
Another common defence is the argument that the recipient spouse is, or should reasonably become, financially self-sufficient. Ontario family law emphasizes encouraging independence where practicable, particularly following separation.
Changes in Circumstances or Post-Separation Conduct
In some contested cases, the paying spouse may rely on changes in circumstances to argue against spousal support or to reduce an existing obligation. This can include job loss, reduced income, health issues, or new financial responsibilities that affect the ability to pay.
Evidence-Based Defence Strategies
Successful defences to spousal support claims in Ontario are grounded in credible, well-documented evidence. Courts place significant weight on complete financial disclosure, employment records, tax returns, and expert evidence where appropriate. Vocational assessments, medical reports, and forensic accounting analyses may be used to challenge claims of inability to work or alleged income levels.
Court Process for Resolving Contested Spousal Support
Conferences, Motions, and Trials
Most contested spousal support cases in Ontario proceed through a series of structured court events rather than going directly to trial. The process typically begins with case conferences, where a judge reviews the issues, encourages settlement, and may provide non-binding guidance on spousal support entitlement or ranges under the Spousal Support Advisory Guidelines.
If immediate financial relief is required, a party may bring a motion seeking interim spousal support while the case is ongoing. Interim orders are based on a preliminary assessment of need and ability to pay, and they do not determine the final outcome. Motions are often contested where income, entitlement, or credibility is disputed.
If settlement is not reached, the matter may proceed through settlement conferences, trial management conferences, and ultimately to trial, where a judge makes final determinations on spousal support. Trials are typically reserved for cases involving complex financial issues, credibility disputes, or sharply conflicting legal positions.
Evidence Required to Support or Oppose Claims
Courts expect full and ongoing financial disclosure, including income history, assets, liabilities, and expenses. Where entitlement is contested, evidence relating to the marriage history, roles during the relationship, caregiving responsibilities, and career sacrifices is also critical. Inadequate or incomplete disclosure can significantly undermine a party’s credibility and may lead to adverse inferences.
Role of Affidavits, Financial Statements, and Expert Reports
Much of the evidence in contested spousal support cases is presented through affidavits and financial statements. Affidavits set out each party’s sworn evidence, including their version of the relationship history, financial circumstances, and arguments regarding support. Financial Statements (Form 13 or 13.1) provide a standardized summary of income, expenses, assets, and debts and are mandatory in spousal support cases.
Judicial Discretion in Final Decisions
Judges assess credibility, consistency of evidence, and the reasonableness of each party’s position. Outcomes can vary significantly based on the quality of disclosure and the court’s assessment of what is just and equitable in the circumstances. This discretion underscores why contested spousal support cases are often unpredictable and why strategic preparation is essential.
Enforcement and Consequences of Non-Payment
Court Enforcement Mechanisms
Ontario courts have broad authority to enforce spousal support orders. When a payor fails to comply, the recipient spouse may return to court to seek enforcement remedies. Courts can issue enforcement orders compelling payment, requiring financial disclosure, or addressing deliberate non-compliance.
In serious cases, courts may order:
- Lump-sum payments toward arrears
- Interest on outstanding support
- Orders compelling the sale or seizure of assets
- Findings of contempt of court where non-payment is willful
Role of Enforcement Agencies
The FRO has significant enforcement powers, including the ability to:
- Garnish wages, bank accounts, or other sources of income
- Intercept tax refunds and federal benefits
- Suspend driver’s licences or passports
- Report arrears to credit bureaus
Consequences of Arrears in Contested Cases
Accumulated spousal support arrears can have serious legal and financial consequences. Ontario courts take arrears seriously and expect payors to address missed payments promptly. Arrears do not disappear simply because a payor’s financial circumstances have changed; until a court order is varied, the original obligation remains enforceable.
When Variation or Termination May Be Sought
Where circumstances change materially, a payor or recipient may apply to the court to vary or terminate spousal support. Common grounds include job loss, income reduction, retirement, health issues, or a significant improvement in the recipient’s financial independence. Courts assess whether the change was foreseeable at the time of the original order and whether it is substantial and ongoing.