Understanding Spousal Support Orders in Canada When the Recipient Lives Abroad

Navigating spousal support can be complicated, especially when the recipient resides outside Canada. At One Legal Professional Corporation, we understand the unique challenges of cross-border family law cases and provide guidance to help you protect your rights. In this article, we break down the key legal considerations regarding spousal support orders for recipients living abroad, including jurisdiction, enforcement, variation of orders, cost of living considerations, and tax implications.

Jurisdiction: Can Canadian Courts Make Orders for Recipients Abroad?

Yes. Under the Divorce Act, Canadian courts have clear jurisdiction to issue spousal support orders even if the recipient resides outside Canada. Courts routinely uphold these orders for dependants living abroad, ensuring that financial support obligations are recognized regardless of geographical boundaries. A landmark case confirming this principle is Follwell v. Holmes, [2006] O.J. No. 4387.

Key Takeaway: Your location does not prevent a Canadian court from making a spousal support order.

Enforcement: Challenges Across Borders

Enforcing a spousal support order can be more complex when the recipient lives in another country. Registration of the order under the Divorce Act is essential. If the recipient resides in a jurisdiction without reciprocal enforcement agreements, collection may depend on the payor’s property in Canada. This principle is highlighted in Bargout v. Bargout, [2013] O.J. No. 2, and governed by Rule 26 of the Courts of Justice Act, Family Law Rules.

Tip: Always consult a legal expert familiar with cross-border enforcement to avoid delays or complications.

Variation of Orders: When Changes Are Permitted

Spousal support orders are not set in stone. Under section 17(4.1) of the Divorce Act, a material change in circumstances—such as changes in financial needs or living conditions—can justify a modification. Courts evaluate the condition, means, and needs of each spouse under section 15.2(4). For example, Mathers v. Crowley, [2021] O.J. No. 6924 demonstrates how courts review and vary support based on substantial changes in circumstances.

Considering Cost of Living in Another Country

The amount of spousal support may change if the recipient resides in a country with a lower cost of living than Canada, but this is not an automatic adjustment. Canadian courts consider various factors when determining or varying spousal support, including the recipient's financial needs and circumstances, which may include the cost of living in their current location. However, the Spousal Support Advisory Guidelines (SSAG) do not explicitly mandate adjustments based on cost of living differences between jurisdictions, leaving such considerations to judicial discretion.

• In Prokopovych v. Prokopovych, [2022] O.J. No. 3516, the court considered whether the wife’s move to Ukraine, which had a lower cost of living, justified a reduction in spousal support. Proper evidence was required, and the recipient’s ability to meet her needs in the new jurisdiction was a key factor.

• Similarly, in Kagan v. Kagan, [2010] O.J. No. 4757, the court considered the cost of living in Israel, including tax benefits, when determining support.

• In McGouran v. Connelly, 79 O.R. (3d) 434, the court emphasized that the SSAG do not explicitly address cost of living adjustments abroad, meaning such considerations must be argued as part of a broader case for variation.

• Tax treatment in the recipient’s jurisdiction may also influence the decision, as seen in Bedzow v. Weisleder, [2020] O.J. No. 5019, where U.S. tax savings were shared between the parties to prevent a windfall.

  Pro Tip: Cost of living differences may justify a variation in support, but courts require solid evidence and consider it alongside other material changes in circumstances.

Tax Treatment: Understanding the Implications

Spousal support payments have specific tax consequences. Typically, payments are deductible for the payor and taxable for the recipient when made periodically under a court order or written agreement. However, non-residency can alter this tax treatment, so it’s critical to consider both Canadian and international tax rules when dealing with cross-border support payments.