Difference between revisions of "Introduction to Spousal Support"

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(8 intermediate revisions by 2 users not shown)
Line 1: Line 1:
{{REVIEWEDPLS | reviewer = [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation|date= May 2017}} {{Dial-A-Law TOC|expanded = divorce}}
{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-rapoport/ Samantha Rapoport], Brown Henderson Melbye|date= March 2021}} {{Dial-A-Law TOC|expanded = divorce}}
When a relationship ends, one spouse may seek help from the other with living expenses or to compensate for choices the spouses made during the relationship. Learn about '''spousal support'''.
The breakup of a relationship can leave partners on an unequal financial footing. A spouse who’s struggling moneywise may ask the other for help. Learn about '''spousal support'''.
 
{| class="wikitable"
|align="left"|'''Alert!'''
This information has been updated to reflect [https://dialalaw.peopleslawschool.ca/the-divorce-act-is-changing changes to the ''Divorce Act''] that took effect on March 1, 2021.
|}
   
   
==Understand your legal rights==  
==What you should know==  


===Spousal support helps a former spouse with living expenses===
===What spousal support is for===
'''Spousal support''' is money paid to a former spouse to help with living expenses. The money is paid under an agreement or court order after a relationship ends.
'''Spousal support''' is money paid by one spouse (the payor) to the other (the recipient) after separation. It’s meant to:


Although anyone who was in a married or unmarried spousal relationship can '''apply''' for spousal support, there is no automatic right to receive support just because of the relationship. Whether spousal support will be paid, and, if so, how much, depends on the particular circumstances of each couple.
* help with living costs and ease financial strain the breakup may have caused
* assist a spouse who’s struggling financially because of the relationship or its breakdown 
* compensate a spouse for their role in the relationship (for example, a spouse who sacrificed their career to care for children)
* help each spouse become financially independent within a reasonable amount of time
 
Spousal support is usually paid under an agreement or court order after a relationship ends. This doesn’t automatically happen — you have to '''apply''' for spousal support. Anyone who was in a married or unmarried '''spousal''' relationship can do so. Each couple’s circumstances will determine how much support is paid, if any.


===Who can claim spousal support===
===Who can claim spousal support===
Everyone who qualifies as a “'''spouse'''” can claim spousal support after separation.  
Anyone who qualifies as a '''spouse''' can ask for spousal support after separation.  


Under the federal ''[http://canlii.ca/t/7vbw Divorce Act]'', spouses are people who are married to each other.  
There are two laws that deal with spousal support: the federal ''Divorce Act'' and the provincial ''Family Law Act''. Under the federal [http://canlii.ca/t/7vbw ''Divorce Act''], spouses are people who are, or were, married to each other.


Under BC’s ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth Family Law Act]'', spouses are people who:
Under BC’s [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth ''Family Law Act''], spouses are people who:
*are married,
*have lived together in a “marriage-like relationship” for at least two years, or
*have lived together in a “marriage-like relationship” for less than two years and have a child together.


===When a spouse is entitled to spousal support=== 
* are married,
Spousal support is intended to do four things:
* have lived together in a “marriage-like relationship” '''for at least two years''', or
*recognize any financial advantages or disadvantages a spouse may face because of the relationship or the breakup
* have lived together in a “marriage-like relationship” for less than two years and '''have a child together'''.
*make both spouses share any financial consequences arising from the care of their children during the relationship
*make sure neither spouse faces economic hardship as a result of the breakup
*if possible, help each spouse become financially independent within a reasonable amount of time


A spouse’s entitlement to spousal support depends on several factors, including:
Married spouses can seek spousal support under '''either Act'''. Unmarried spouses can '''only''' ask for spousal support under the ''Family Law Act''.
*'''The length of the relationship''': The longer the relationship, the more likely spousal support will be awarded.  
*'''Difference in incomes''': The greater the difference in income between the spouses at the end of a relationship, the more likely spousal support will be awarded.
*'''Economic disadvantage''': The more economically disadvantaged a spouse is as a result of the relationship (due, for example, to leaving the workforce to raise a child, and therefore missing out on developing job skills and on getting raises), the more likely spousal support will be awarded.
*'''Earning capacity''': The more one spouse’s earning capacity is reduced because of family obligations like child care or a serious illness the more likely spousal support will be awarded.


Generally, if one spouse supported the other during their relationship, that spouse will be expected to continue to contribute to the support of the other spouse after the relationship breaks down. On the other hand, if both spouses were financially independent during the relationship, then in general, neither will be entitled to receive financial support after separation.
===When a spouse can get spousal support=== 
Many factors determine whether a spouse can get spousal support. Some of these include:
 
* '''Length of the relationship'''. The longer the relationship, the more likely spousal support will be awarded.
* '''Difference in incomes'''. The greater the difference between the spouses’ incomes at the end of a relationship, the more likely spousal support will be awarded.
* '''Economic disadvantage'''. The worse off financially the relationship has left one spouse, the more likely that spouse will be awarded support. A struggling spouse may have left the workforce to raise a child, for example, leading them to miss out on developing job skills and on getting raises.
* '''Earning capacity'''. The less capable a spouse is of earning an income, the more likely spousal support will be awarded. Earning potential can be limited by things like family obligations (such as providing child care) or a serious illness.
 
During the relationship, one spouse might have been supporting the other financially. That arrangement doesn’t end at the moment of the breakup. The supporting spouse must continue to help the other. On the other hand, if the spouses have been self-supporting all along, neither spouse is likely to get financial help after separation.


===The effect of a spouse’s behaviour on support===  
===The effect of a spouse’s behaviour on support===  
The conduct of the spouses is usually irrelevant when deciding spousal support. For example, a spouse will not be denied support because they had an affair or because they were violent or suffered violence.  
How a spouse acts usually doesn’t matter when it comes to spousal support. So, a spouse can still get support whether they’ve been, say, violent or unfaithful, or a victim of violence.  


Under the ''Family Law Act'', however, a court can consider conduct that:
But, under BC family law, a court ''can'' look at how a spouse has acted to see whether:
*unreasonably causes or prolongs a need for spousal support, or
*unreasonably affects a spouse’s ability to pay spousal support.


===The amount of spousal support===
* a recipient is taking steps to become self-sufficient, or
Where a spouse is entitled to receive spousal support, the amount of spousal support is usually determined using the [https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]. These Guidelines are used whether the amount is being determined by a court or negotiated by the parties.  
* a payor’s conduct unreasonably affects their ability to pay support (for example, a spouse quits their job so they don’t have to pay support).


The Guidelines use a number of mathematical formulas to calculate spousal support ranges and the length of time for which support should be paid.  
===How much support a spouse can get===
Support payment amounts are usually based on the [https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]. These guidelines — used by a court or by the parties themselves — help determine how much spousal support should be paid and for how long.


The formulas used to determine these ranges can be complicated, especially if a child is involved. Software programs make some of the more difficult calculations easier. Some companies in the private sector sell software for this purpose — for example, DivorceMate. There are also free online calculators such as [http://www.mysupportcalculator.ca/ mysupportcalculator.ca] that can do simple calculations.
This can get complicated. Especially if the couple has a child. For help, you can use free online calculators, such as [http://www.mysupportcalculator.ca/ mysupportcalculator.ca]. They can do simple calculations and give you an idea of how much support you might get.
 
====Both spouses must provide full financial disclosure====
Both spouses must share all details about their financial situation with each other. It doesn’t matter whether they’re in court or trying to settle out of court. (Spouses often complete and exchange financial statements using the forms required by the courts, even when they’re not in a court proceeding.)
 
Financial statements help the spouses get a complete picture of their property and debts and their income and liabilities. Financial statements are usually provided along with important documents like income tax returns, tax assessments, and copies of financial documents such as bank statements.


===How long spousal support is paid for===
===How long spousal support is paid for===
Once a spouse's entitlement to spousal support is established and the amount of support payments fixed, the next step is to look at how long the support payments will be paid for.  
Once it’s clear that spousal support is owed, and how much is payable, the next question is: for how long? The answer often depends on how long the spouses were together.


The law expects each spouse to make reasonable efforts to become self-supporting if at all possible. To encourage this, support payments may be limited to a certain length of time. For example, if a spouse needs to get job training before returning to work, payments may be limited to the period of time needed to complete that training.  
People leaving '''long''' relationships might receive spousal support for their whole lives — or at least until the payor of support retires. The courts recognize that the older a person is, the harder it generally is to get back into the workforce or to retrain.  


The length of the spouses’ relationship is often a significant factor in determining how long spousal support will be paid. For people leaving long relationships, spousal support might be paid permanently or until retirement. The courts recognize that the older a person is, the harder it generally is to return to the workforce or retrain.  
People who’ve been in '''shorter''' relationships might receive support for a limited time. This is true especially where the recipient is either working outside the home or capable of working outside the home.


For people in shorter relationships, particularly where the person receiving support payments is either working outside the home or capable of working outside the home, support might only be payable for a fixed length of time.
Each spouse is expected to make reasonable efforts to support themselves. For example, a spouse may need job training before going back to work. In that case, support payments may be limited to the time needed to complete that training.


===How to get spousal support===
===How to get spousal support===
Arrangements for spousal support can be made in a '''separation agreement'''. If spouses cannot agree on the payment of spousal support, one of them can apply to court for an order that spousal support be paid.  
Spouses can make arrangements for spousal support in a '''separation agreement'''. If they can’t agree, one of them can apply to court for a '''spousal support order'''.
 
====Which court to go to====
A married spouse can apply for spousal support in:
 
* BC Supreme Court, under the ''Divorce Act'' or the ''Family Law Act'', or
* the Provincial Court, under the ''Family Law Act''.


Married spouses can seek spousal support under either the federal ''Divorce Act'' or the provincial ''Family Law Act''. Unmarried spouses can only ask for spousal support under the ''Family Law Act''.
An unmarried spouse can apply for spousal support in either the Supreme Court or the Provincial Court under the ''Family Law Act''.


====Which court to go to====
Each court has its own rules and forms. For Provincial Court, [[Provincial (Family) Court|see our information on Provincial (Family) Court]].
To apply for spousal support under the ''Divorce Act'', or under both laws, the claim must be made in BC Supreme Court. To apply for support under the ''Family Law Act'', the claim can be made in either the Supreme Court or the Provincial Court. Each court has its own forms and rules. For Provincial Court, see our information on [[Family Court (No. 110)|Family Court (no. 110)]].


====Getting “interim” support====
====Getting “interim” support====
While the court case is in progress, either spouse may ask the court for an “'''interim order'''” for spousal support. This is a temporary order meant to last until the case is settled or goes to trial. For more on interim orders, see our information on [[Applying for an Interim Order in a Family Law Case in Supreme Court (No. 112)|applying for an interim order in a family law case in Supreme Court (no. 112)]].
While the court case is ongoing, either spouse may ask the court for an '''interim order''' for spousal support. This is a temporary order meant to last until the case is settled or goes to trial. For more on interim orders in Supreme Court, [[Applying for an Interim Order in a Family Law Case in Supreme Court|see our information on applying for an interim order in a family law case in Supreme Court]].


===Both spouses must provide full financial disclosure===
When determining whether to make an order for interim support, the court will look at the “means and needs” of the parties. That is: does the recipient have the need for support, and does the payor have the means to pay?
Full financial disclosure is required of both spouses when making decisions about spousal support, whether the spouses are in court or are trying to negotiate a resolution outside of court. Spouses often complete and exchange financial statements using the forms required by the courts, even when they’re not in a court proceeding.


Financial statements help to give the spouses a complete picture of their property and debts, income and liabilities, and are usually provided along with important documents like income tax returns and tax assessments.    
{| class="wikitable"
|align="left"|'''Tip'''
Legal Aid BC’s '''Family Law in BC website''' has self-help guides that include step-by-step instructions and blank forms. You can use these guides to apply for an interim order in [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/supreme-court/get-interim-family-order-supreme-court-if#0 Supreme Court] or [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/provincial-court/get-interim-family-order-provincial-0#0 Provincial Court].
|}


==Common questions==
==Common questions==
===Is there a time limit to ask for spousal support?===
It depends on which law you use and whether you’re a married or unmarried spouse. Under the ''Divorce Act'', there’s no time limit. A married spouse can ask for spousal support '''at any point''' after a divorce. But, in practice, it’s important to apply for spousal support in a timely way.
Under the ''Family Law Act'', married spouses have to start a court action for spousal support '''within two years''' of the date of their divorce or annulment. Unmarried spouses have to start a court action '''within two years''' of the date of their separation.
===What can I do if my spouse won’t pay the support?===
If your spouse doesn’t pay the spousal support required by a court order or agreement, the '''Family Maintenance Enforcement Program''' can help. This free BC government program can help you collect the support payments you’re owed. It can monitor a support order to make sure payments continue to be made. For more, [[Enforcing Support Orders and Agreements|see our information on enforcing support orders and agreements]].
===Can I change a spousal support order?===
What if, after spousal support has been court ordered or agreed to, one spouse has a big change in their financial circumstances — for better or worse? (Examples include a job loss or a wage increase.) In this case, either spouse can apply to change the support order or renegotiate the separation agreement. Generally, the change must be significant. And it can’t have been foreseeable when the support order or agreement was made.
Note that if you want to change an order and the other spouse lives outside of BC, there is a [https://family.legalaid.bc.ca/bc-legal-system/court-orders/when-more-one-province-or-country-involved/can-you-change-support-0 specific procedure] to follow under each of the BC ''Family Law Act'' and the federal ''Divorce Act''.
{| class="wikitable"
|align="left"|'''Tip'''
Legal Aid BC’s '''Family Law in BC website''' has self-help guides that include step-by-step instructions and blank forms. You can use these guides to apply to change a spousal support order or a court-filed agreement in [https://family.legalaid.bc.ca/bc-legal-system/court-orders/change-order-or-set-aside-agreement-made-bc/supreme-court/change-0#0 Supreme Court] or [https://family.legalaid.bc.ca/bc-legal-system/court-orders/change-order-or-set-aside-agreement-made-bc/change-order-or-set-0 Provincial Court].
|}
===What if I’m on income assistance?===
After a couple separates, one spouse might be receiving income assistance from the BC Ministry of Social Development and Poverty Reduction. That spouse may want help with getting an agreement or court order for spousal support. In this case, the ministry may step in to help the income assistance recipient. It may ask that spouse to [https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services assign their rights to spousal support] to them. The ministry can then help with obtaining or defending a spousal support order or agreement, which can be enrolled with the Family Maintenance Enforcement Program for enforcement.


===What are the tax consequences of spousal support?===
===What are the tax consequences of spousal support?===
Spousal support is '''taxable income''' in the hands of the spouse who receives it, and '''deductible''' from the taxable income of the spouse who pays it. The person receiving support payments must report the income to Canada Revenue Agency and pay tax on it, just like employment income. The person paying support is allowed to claim the payments as a tax deduction, just like RRSP contributions.
Spousal support is considered '''taxable income''' for the spouse who receives it. It counts as a '''tax deduction''' for the spouse paying it. The recipient must report the income to the Canada Revenue Agency and pay tax on it, just like employment income. The payor can claim the payments as a tax deduction, just like RRSP contributions.


For spousal support payments to be taxable and deductible, the payments must be:
For spousal support payments to be taxable and deductible, the payments must be:
*paid because of a written agreement or a court order,
*paid on a periodic basis, such as once a month or once every two weeks, and
*actually paid.


Other kinds of support payments — such as payments made in a lump sum or payments made by providing services — are not taxable or deductible. It may be necessary to speak to a lawyer to confirm the tax status of spousal support payments.
* paid because of a written agreement or a court order,
* made on a periodic basis, such as once a month or once every two weeks, and
* actually paid.
 
Other kinds of support payments — such as those made in a lump sum or “in kind” (that is, paid in services, not money) — aren’t taxable or deductible. It may be necessary to speak to a lawyer to confirm the tax status of spousal support payments.


The tax consequences of support payments should be taken into account when determining the amount of support that should be paid. For more on this, see our information on [[Tax Implications of Support Payments (No. 133)|the tax implications of support payments (no. 133)]].
When you’re figuring out how much spousal support should be paid, keep in mind the tax consequences of support payments. For more on this, [[Tax Implications of Support Payments|see our information on the tax implications of support payments]].


===What if I’m on income assistance?===
==Who can help==
After a couple separates, if one spouse applies for or is receiving income assistance, the BC government may ask them to [https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services assign their rights to spousal support] to the Ministry of Social Development and Poverty Reduction. This allows the Ministry to take steps to collect spousal support on their behalf, and to keep some or all of the support it collects. 


===What happens if circumstances change?===
===Free and low-cost legal help===
If there’s a significant change in the financial circumstances of either spouse after spousal support has been ordered or agreed to, it is almost always possible to apply to change the support order or to renegotiate a separation agreement. Examples include if either spouse’s financial situation unexpectedly worsens, or the paying spouse gets better paying work. Generally, the change must be significant and must not have been foreseeable when the support order or agreement was made.
'''Family justice counsellors''' in Family Justice Centres throughout BC can help couples understand spousal support, mediate and prepare a separation agreement, or help prepare materials to get a support order in Provincial Court. Their services are free.  
* Call 604-660-2421 (Lower Mainland),
* Call 1-800-663-7867 (toll-free, Kelowna)
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice Visit website]


===What can I do if my spouse won’t pay the support?===
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
If your spouse does not pay spousal support as ordered or agreed, the '''Family Maintenance Enforcement Program''' can help free of charge. This BC government program can help you collect support payments that are owed and monitor a support order to make sure payments continue to be made. For more details, see our information on [[Enforcing Support Orders and Agreements (No. 132)|enforcing support orders and agreements (no. 132)]].  


==Get help==
===With more information===
Legal Aid BC’s '''Family Law website''' features information on spousal support and has step-by-step guides for going to court in family matters.


===With spousal support===
* [https://familylaw.lss.bc.ca/finances-support/child-spousal-support/spousal-support Visit website]
Family justice counsellors in '''Family Justice Centres''' throughout BC can help couples with understanding spousal support, preparing a separation agreement, and obtaining a support order in Provincial Court. Their services are free.
:Telephone: 604-660-2421 in the Lower Mainland and 250-387-6121 in Greater Victoria
:Toll-free: 1-800-663-7867
:Web: [http://www.justicebc.ca/en/fam/ justicebc.ca/en/fam]


===More information===
The wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC, has in-depth information on spousal support.
The Legal Services Society’s '''Family Law in BC website''' features information on spousal support and step-by-step guides on going to court in family matters.
:Web: [https://familylaw.lss.bc.ca/legal_issues/supportSpouseBasics.php familylaw.lss.bc.ca]


The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, has indepth information on spousal support.
* [https://wiki.clicklaw.bc.ca/index.php/Spousal_Support Visit website]
:Web: [http://wiki.clicklaw.bc.ca/index.php/Spousal_Support wiki.clicklaw.bc.ca]


{{Dial-A-Law_Navbox|type=families}}
{{Dial-A-Law_Navbox|type=families}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}

Latest revision as of 20:52, 25 September 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha Rapoport, Brown Henderson Melbye in March 2021.
Dial-A-Law
Dial-A-Law‎
This page is
from Dial-A-Law‎,
a starting point for
information on the law
in British Columbia.
See the full contents.
About
Introduction
Consumer & Money
Work & Business
Families & Children
Divorce & Separation
 · Separation & Separation Agreements

 · Deciding Who Will Move Out

 · Requirements for Divorce & Annulment

 · Desk Order Divorce

 · Responding to Divorce Proceedings

 · Guardianship & Parenting Arrangements

 · Child Support

 · Spousal Support

 · Enforcing Support Orders & Agreements

 · Tax Implications of Support Payments

 · Dividing Property & Debts
Life
Courts & Crime
From
Visit more from People's Law School
People's Law School
v • d • e

The breakup of a relationship can leave partners on an unequal financial footing. A spouse who’s struggling moneywise may ask the other for help. Learn about spousal support.

Alert!

This information has been updated to reflect changes to the Divorce Act that took effect on March 1, 2021.

What you should know

What spousal support is for

Spousal support is money paid by one spouse (the payor) to the other (the recipient) after separation. It’s meant to:

  • help with living costs and ease financial strain the breakup may have caused
  • assist a spouse who’s struggling financially because of the relationship or its breakdown
  • compensate a spouse for their role in the relationship (for example, a spouse who sacrificed their career to care for children)
  • help each spouse become financially independent within a reasonable amount of time

Spousal support is usually paid under an agreement or court order after a relationship ends. This doesn’t automatically happen — you have to apply for spousal support. Anyone who was in a married or unmarried spousal relationship can do so. Each couple’s circumstances will determine how much support is paid, if any.

Who can claim spousal support

Anyone who qualifies as a spouse can ask for spousal support after separation.

There are two laws that deal with spousal support: the federal Divorce Act and the provincial Family Law Act. Under the federal Divorce Act, spouses are people who are, or were, married to each other.

Under BC’s Family Law Act, spouses are people who:

  • are married,
  • have lived together in a “marriage-like relationship” for at least two years, or
  • have lived together in a “marriage-like relationship” for less than two years and have a child together.

Married spouses can seek spousal support under either Act. Unmarried spouses can only ask for spousal support under the Family Law Act.

When a spouse can get spousal support

Many factors determine whether a spouse can get spousal support. Some of these include:

  • Length of the relationship. The longer the relationship, the more likely spousal support will be awarded.
  • Difference in incomes. The greater the difference between the spouses’ incomes at the end of a relationship, the more likely spousal support will be awarded.
  • Economic disadvantage. The worse off financially the relationship has left one spouse, the more likely that spouse will be awarded support. A struggling spouse may have left the workforce to raise a child, for example, leading them to miss out on developing job skills and on getting raises.
  • Earning capacity. The less capable a spouse is of earning an income, the more likely spousal support will be awarded. Earning potential can be limited by things like family obligations (such as providing child care) or a serious illness.

During the relationship, one spouse might have been supporting the other financially. That arrangement doesn’t end at the moment of the breakup. The supporting spouse must continue to help the other. On the other hand, if the spouses have been self-supporting all along, neither spouse is likely to get financial help after separation.

The effect of a spouse’s behaviour on support

How a spouse acts usually doesn’t matter when it comes to spousal support. So, a spouse can still get support whether they’ve been, say, violent or unfaithful, or a victim of violence.

But, under BC family law, a court can look at how a spouse has acted to see whether:

  • a recipient is taking steps to become self-sufficient, or
  • a payor’s conduct unreasonably affects their ability to pay support (for example, a spouse quits their job so they don’t have to pay support).

How much support a spouse can get

Support payment amounts are usually based on the Spousal Support Advisory Guidelines. These guidelines — used by a court or by the parties themselves — help determine how much spousal support should be paid and for how long.

This can get complicated. Especially if the couple has a child. For help, you can use free online calculators, such as mysupportcalculator.ca. They can do simple calculations and give you an idea of how much support you might get.

Both spouses must provide full financial disclosure

Both spouses must share all details about their financial situation with each other. It doesn’t matter whether they’re in court or trying to settle out of court. (Spouses often complete and exchange financial statements using the forms required by the courts, even when they’re not in a court proceeding.)

Financial statements help the spouses get a complete picture of their property and debts and their income and liabilities. Financial statements are usually provided along with important documents like income tax returns, tax assessments, and copies of financial documents such as bank statements.

How long spousal support is paid for

Once it’s clear that spousal support is owed, and how much is payable, the next question is: for how long? The answer often depends on how long the spouses were together.

People leaving long relationships might receive spousal support for their whole lives — or at least until the payor of support retires. The courts recognize that the older a person is, the harder it generally is to get back into the workforce or to retrain.

People who’ve been in shorter relationships might receive support for a limited time. This is true especially where the recipient is either working outside the home or capable of working outside the home.

Each spouse is expected to make reasonable efforts to support themselves. For example, a spouse may need job training before going back to work. In that case, support payments may be limited to the time needed to complete that training.

How to get spousal support

Spouses can make arrangements for spousal support in a separation agreement. If they can’t agree, one of them can apply to court for a spousal support order.

Which court to go to

A married spouse can apply for spousal support in:

  • BC Supreme Court, under the Divorce Act or the Family Law Act, or
  • the Provincial Court, under the Family Law Act.

An unmarried spouse can apply for spousal support in either the Supreme Court or the Provincial Court under the Family Law Act.

Each court has its own rules and forms. For Provincial Court, see our information on Provincial (Family) Court.

Getting “interim” support

While the court case is ongoing, either spouse may ask the court for an interim order for spousal support. This is a temporary order meant to last until the case is settled or goes to trial. For more on interim orders in Supreme Court, see our information on applying for an interim order in a family law case in Supreme Court.

When determining whether to make an order for interim support, the court will look at the “means and needs” of the parties. That is: does the recipient have the need for support, and does the payor have the means to pay?

Tip

Legal Aid BC’s Family Law in BC website has self-help guides that include step-by-step instructions and blank forms. You can use these guides to apply for an interim order in Supreme Court or Provincial Court.

Common questions

Is there a time limit to ask for spousal support?

It depends on which law you use and whether you’re a married or unmarried spouse. Under the Divorce Act, there’s no time limit. A married spouse can ask for spousal support at any point after a divorce. But, in practice, it’s important to apply for spousal support in a timely way.

Under the Family Law Act, married spouses have to start a court action for spousal support within two years of the date of their divorce or annulment. Unmarried spouses have to start a court action within two years of the date of their separation.

What can I do if my spouse won’t pay the support?

If your spouse doesn’t pay the spousal support required by a court order or agreement, the Family Maintenance Enforcement Program can help. This free BC government program can help you collect the support payments you’re owed. It can monitor a support order to make sure payments continue to be made. For more, see our information on enforcing support orders and agreements.

Can I change a spousal support order?

What if, after spousal support has been court ordered or agreed to, one spouse has a big change in their financial circumstances — for better or worse? (Examples include a job loss or a wage increase.) In this case, either spouse can apply to change the support order or renegotiate the separation agreement. Generally, the change must be significant. And it can’t have been foreseeable when the support order or agreement was made.

Note that if you want to change an order and the other spouse lives outside of BC, there is a specific procedure to follow under each of the BC Family Law Act and the federal Divorce Act.

Tip

Legal Aid BC’s Family Law in BC website has self-help guides that include step-by-step instructions and blank forms. You can use these guides to apply to change a spousal support order or a court-filed agreement in Supreme Court or Provincial Court.

What if I’m on income assistance?

After a couple separates, one spouse might be receiving income assistance from the BC Ministry of Social Development and Poverty Reduction. That spouse may want help with getting an agreement or court order for spousal support. In this case, the ministry may step in to help the income assistance recipient. It may ask that spouse to assign their rights to spousal support to them. The ministry can then help with obtaining or defending a spousal support order or agreement, which can be enrolled with the Family Maintenance Enforcement Program for enforcement.

What are the tax consequences of spousal support?

Spousal support is considered taxable income for the spouse who receives it. It counts as a tax deduction for the spouse paying it. The recipient must report the income to the Canada Revenue Agency and pay tax on it, just like employment income. The payor can claim the payments as a tax deduction, just like RRSP contributions.

For spousal support payments to be taxable and deductible, the payments must be:

  • paid because of a written agreement or a court order,
  • made on a periodic basis, such as once a month or once every two weeks, and
  • actually paid.

Other kinds of support payments — such as those made in a lump sum or “in kind” (that is, paid in services, not money) — aren’t taxable or deductible. It may be necessary to speak to a lawyer to confirm the tax status of spousal support payments.

When you’re figuring out how much spousal support should be paid, keep in mind the tax consequences of support payments. For more on this, see our information on the tax implications of support payments.

Who can help

Free and low-cost legal help

Family justice counsellors in Family Justice Centres throughout BC can help couples understand spousal support, mediate and prepare a separation agreement, or help prepare materials to get a support order in Provincial Court. Their services are free.

  • Call 604-660-2421 (Lower Mainland),
  • Call 1-800-663-7867 (toll-free, Kelowna)
  • Visit website

Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

With more information

Legal Aid BC’s Family Law website features information on spousal support and has step-by-step guides for going to court in family matters.

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, has in-depth information on spousal support.

v • d • e
 
Families & Children
Family Relationships
Divorce & Separation
Children
Resolving Family Disputes
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.


Retrieved from "https://stagewiki.clicklaw.bc.ca/index.php?title=Introduction_to_Spousal_Support&oldid=56978"