Because Canadian family law is primarily “no-fault,” holding a criminal record does not automatically disqualify an ex-spouse from receiving spousal support. However, if a spouse’s illegal actions (such as embezzlement) deliberately caused their own economic ruin, the Superior Court of Justice may impute income and reduce or deny their support entitlement.
When marriages end under difficult circumstances, emotions run high, especially if one spouse has committed a crime. A frequent misconception in Ontario is that bad behaviour or a criminal record automatically strips a person of their legal rights to financial assistance. Unlike some foreign jurisdictions that heavily penalize marital misconduct, the federal Divorce Act and Ontario’s Family Law Act generally operate on a “no-fault” basis. This means that infidelity, being difficult to live with, or even being convicted of an offence does not instantly cancel spousal support obligations. ⚖
However, while the moral fault of a crime is largely ignored in family court, the economic consequences of that crime are heavily scrutinized. If an individual in Windsor, Hamilton, or Toronto commits an indictable offence that leads to their incarceration or the loss of a highly lucrative career, they cannot simply demand that their innocent spouse fund their self-inflicted poverty. In these complex scenarios, the Superior Court of Justice takes a nuanced approach, separating the moral judgment of the crime from its direct financial impact on the family’s self-sufficiency. 💰
Step-by-Step Process to Address Support When a Crime is Involved in Ontario
Dealing with spousal support when a criminal record is in play requires strategic legal maneuvering. The paying spouse must demonstrate that the recipient’s financial need is a direct result of their own reckless and illegal choices, rather than the breakdown of the marriage itself. Here is how family lawyers generally approach these unique cases. 📝
Step 1: Identifying the Economic Impact of the Offence
The first step is establishing a direct link between the criminal act and the spouse’s inability to earn an income. For example, if a spouse was a licensed financial advisor but lost their professional license due to a fraud conviction, their subsequent unemployment is self-inflicted. The innocent spouse’s lawyer will compile evidence showing that the recipient had the capacity to earn a high income, but willfully destroyed that capacity through illegal actions. 💼
Step 2: Arguing for Imputed Income
Once the economic self-sabotage is proven, the legal strategy shifts to “imputing” income. Under the Spousal Support Advisory Guidelines (SSAG), a court can pretend the offending spouse is still earning their previous salary, even if they are currently unemployed or working a minimum wage job due to their criminal record. By imputing a higher income to the recipient, the calculated need for spousal support drops significantly, sometimes all the way to zero. 📈
Step 3: Gathering Employment and Court Records
Evidence is critical in these proceedings. You must obtain official documentation, which may include the Certificate of Conviction, transcripts from the criminal trial, and letters of termination from the former employer. This paperwork proves to the family court judge that the loss of income was unequivocally caused by the criminal conviction (whether it was a summary conviction or an indictable offence), and not due to illness, the economy, or child-rearing responsibilities. 📄
Step 4: Presenting the Case at the Superior Court of Justice
With the evidence gathered and the SSAG arguments prepared, the matter is brought before a judge at the local Superior Court of Justice. Through a Motion to Change (if a support order already exists) or an initial Application, your family lawyer will argue that requiring the innocent spouse to subsidize the financial fallout of the other’s criminal behaviour is fundamentally unjust and contrary to the objectives of the Divorce Act. 🗟
How Different Offences May Affect Spousal Support
| Type of Situation | Potential Impact on Support Entitlement |
|---|---|
| Incarceration | While in prison, the recipient’s living expenses are covered by the state. Support may be suspended or drastically reduced during this time. |
| Loss of Professional License | Courts may impute the income the spouse *could* have made, drastically lowering the support the innocent spouse must pay. |
| Unrelated Minor Record | A minor, older record (like an old DUI) that does not affect current employability will likely have zero impact on the support calculation. |
How Much Does it Cost to Litigate Complex Support in Ontario?
Litigating spousal support cases that involve imputed income and criminal records is highly complex and rarely resolved through simple mediation. You are paying for advanced legal strategy and advocacy. 💲
- Lawyer Retainers: Family lawyers will typically require an initial retainer of $5,000 to $10,000 CAD to take on a complex contested support file.
- Total Legal Fees: Taking an imputed income case to a full trial at the Superior Court of Justice can easily range from $20,000 to $40,000 CAD or more.
- Cost Awards: If you are successful in proving the ex-spouse’s claims are unreasonable due to their own criminal conduct, the judge may order them to pay a portion of your legal fees (known as a cost award).
How Long Does the Process Take?
Because these cases involve intersecting areas of law (criminal history and family finance), they take time to build. Gathering transcripts and employment records can take a few months. If the matter proceeds through case conferences, settlement conferences, and eventually to a trial in a busy jurisdiction like Brampton or Ottawa, you should expect the process to take anywhere from 12 to 24 months to reach a final resolution. 📅
Frequently Asked Questions (FAQ)
Does domestic violence affect spousal support in Ontario?
Generally, family violence does not directly increase or decrease the mathematical quantum of spousal support under the SSAG. However, severe abuse can impact civil claims for damages, and definitely impacts decision-making responsibility for children.
If my ex is sent to prison, do I still have to pay them support?
It is possible to successfully apply to suspend or terminate support while they are incarcerated, as their basic needs (food, shelter) are being provided by the government, meaning their immediate financial ‘need’ is greatly reduced.
Can a criminal record prevent someone from paying child support?
No. Child support is a right of the child. If a paying spouse commits a crime and loses their job, the court will still look to impute income or seize assets to ensure the child is financially supported, prioritizing child support over spousal support.
What does ‘imputing income’ actually mean?
Imputing income means the judge legally treats a person as if they are earning a certain amount of money, even if their actual tax return shows zero. Support calculations are then based on that imaginary, imputed number.
Do I need a family lawyer or a criminal lawyer for this?
You need a family lawyer to handle the spousal support issue. While a criminal conviction is the backdrop of the case, the actual legal arguments regarding the SSAG, imputed income, and the Divorce Act are strictly within the realm of family law.
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