Introduction to Spousal Support

This script discusses spousal support, sometimes called “maintenance” or “alimony”. This discussion applies equally to married spouses and unmarried spouses.

What is spousal support?

Spousal support is money paid by one spouse to the other when a relationship breaks down and the couple has separated. Spousal support isn’t paid just because a couple was in a married or unmarried spousal relationship; the spouse seeking spousal support must prove that he or she is entitled to receive it. The reasons why a spouse might be entitled to receive spousal support are discussed in more detail later on.

Who can claim spousal support?

Everyone who qualifies as a “spouse” can claim spousal support after separation. Spouses are people who:

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

Whether a spouse is entitled to spousal support, and if so in what amount, depends on the specific circumstances of each couple.

How do you get spousal support?

Arrangements for the payment of spousal support can be made in a separation agreement. If you can’t agree on the payment of spousal support, the court can make an order requiring the payment of spousal support.

Married spouses can ask for an order for spousal support under both the federal Divorce Act and the provincial Family Law Act. Unmarried spouses can only ask for spousal support under the Family Law Act. Claims for spousal support under the Family Law Act must be made within two years of an order for the divorce or nullity of a marriage for married spouses, or, for unmarried spouses, within two years of the date of separation.

Which court do you go to?

Married spouses can apply for spousal support under both the Divorce Act and the Family Law Act. If they choose to apply for spousal support under the Divorce Act, or under both laws, they must make a claim in the Supreme Court. If they apply for support under the Family Law Act, they can make a claim in either the Supreme Court or the Provincial Court. Each court has its own forms, rules and procedures.

Unmarried spouses can only apply for spousal support under the Family Law Act. They can apply for spousal support in either the Supreme Court or the Provincial Court.

What are “interim” support orders and “final” support orders?

After a couple separates, either spouse may begin a court proceeding asking for an order for spousal support, and for other orders such as for divorce, if they are married, or about the parenting of the children. In between the beginning of the court case and its end, spouses often need to ask the court for “interim” orders for spousal support. It can often take a year or more to bring a court case to a trial or a settlement. Interim orders for spousal support are meant to be temporary and only last until another interim order is made or until the court case ends.

Final orders are made by a judge following trial, or with the agreement of the parties following settlement. Final orders are meant to be permanent.

How does the court decide if spousal support should be ordered?

The court considers several factors. These include:

• the length of the relationship
• any advantages or disadvantages to the spouses as a result of their relationship or its breakdown
• the functions performed by each spouse during their relationship
• any financial consequences arising from the care of the children
• the financial circumstances of each spouse, both during the relationship and after separation
• the ability of each spouse to support him- or herself

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 when together or are capable of being financially independent after separation, then in general, neither will be entitled to receive financial support after separation.

In some cases, though, a spouse may be entitled to support even if they were not financially dependent on the other spouse. This kind of support is called “compensatory spousal support” and is sometimes ordered where a spouse has suffered a financial loss as a result of decisions made during the relationship, such as a decision to leave the workforce to raise children to leave a job in order to move with the family to a new town.

Does a spouse’s behaviour affect whether support is paid?

The conduct of the spouses is usually irrelevant when deciding support. For example, a spouse won’t be denied support because he or she had an affair or because he or she was violent or suffered violence.

Under the Family Law Act, however, the court can consider behaviour that:

• unreasonably causes or prolongs a need for spousal support; or
• unreasonably affects a spouse’s ability to pay spousal support

How is the amount of spousal support determined?

Once it’s been decided that a spouse should receive spousal support, the amount payable is usually determined using the Spousal Support Advisory Guidelines, whether the amount is being determined by the court or negotiated by the parties. The Advisory Guidelines use a number of mathematical formulas to calculate ranges for the amount of spousal support and the length of time for which it should be paid.

The formulas used to determine these ranges can be very complicated, especially if you have children, and it’s usually necessary to use a computer program. Lawyers have access to sophisticated software like this, or you can use the simplified calculator available for free at www.mysupportcalculator.ca.

Do spouses have to disclose all their finances when someone is asking for spousal support?

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 (Form F8 in the Supreme Court and Form 4 in the Provincial Court), even when they’re not in court.

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. However, these forms can be complicated and you may need the help of a lawyer.

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 must report the income to Revenue Canada 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.

Only spousal support payments that are paid on a periodic basis, once a month or once every two weeks for example; are actually paid; and, are paid because of a written agreement or a court order are taxable and deductible. Other kinds of support payments, such as payments made in one or more lump sums, payments to third parties (like a landlord) or payments in services, may not be taxable or deductible. You should 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 information on this, see script 133 on the “Income Tax Implications of Support Payments”.

How long is spousal support paid for?

The law expects each spouse to make reasonable efforts to become self-supporting if at all possible. To encourage this, the court may limit the support payments to a certain length of time. For example, if a spouse needs to get job training before returning to work, the court may limit payments to the period of time needed to complete that training. On the other hand, the court may order that payments go on indefinitely, or until the paying spouse retires. In cases where it’s uncertain how much time a partner will need to become self-supporting, the court can make a support order that is reviewable after a certain length of time or upon a certain event, like a spouse’s retirement.

The length of the spouses’ relationship is often a significant factor in determining how long spousal support should be paid. The courts recognize that the older the person is, the harder it generally is to get a job. As a result, the longer the relationship is, the less likely it is that a stay-at-home spouse will have to look for work and the more likely it is that spousal support will have to be paid indefinitely.

What happens if circumstances change?

Financial disclosure may have to be made again if there’s a significant change in the financial circumstances of either spouse after spousal support has been ordered. Even after a final support order has been made, the amount of support can be changed if either spouse’s income or other financial circumstances change. Generally, the change must be significant and mustn’t have been foreseeable when the support order or agreement was made.

What can you do if your spouse won’t pay the support?

If your spouse doesn’t pay spousal support as ordered or agreed, the Family Maintenance Enforcement Program can help you free of charge. FMEP will help you collect support payments that are owed and monitor a support order to make sure payments continue to be made. For more information, refer to script 132 on “Enforcing Orders and Agreements for Support”.

What happens if you are on social assistance?

If you are applying for or receiving social assistance, you will be required to sign a form that assigns any rights you may have to apply for or receive spousal support to the Ministry. This allows the Ministry to take whatever steps it considers necessary to collect spousal support on your behalf, and to keep some or all of the support it collects. The Family Maintenance Program (which is different from the Family Maintenance Enforcement Program) is the program that collects spousal support on behalf of people receiving social assistance and may apply for an order for spousal support on its own initiative.

Where can you get help or more information?

• Family Justice Counsellors in Family Justice Centres throughout BC can help you with understanding spousal support, preparing a separation agreement, and obtaining a support order in Provincial Court (but not Supreme Court). Their services are free. Call 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you.
• See the Family Justice website at www.ag.gov.bc.ca/family-justice.
• The laws referred in this script are available at www.bclaws.ca or http://laws-lois.justice.gc.ca.
• See the Spousal Support section of the wikibook JP Boyd on Family Law, published by Courthouse Libraries BC.

[updated October 2014]

---

---

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

In family law, an antiquated term referring to child support and spousal support. See "child support" and "spousal support."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

Any order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final, order. See "application" and "interim application."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

An academic paper released by the Department of Justice that describes a variety of mathematical formulas that can be applied to determine how much spousal support should be paid and how long spousal support should be paid for, once a spouse is found to be entitled to receive support. The Advisory Guidelines are not a law, but are nonetheless very useful.

Short for the Spousal Support Advisory Guidelines, an academic paper released by the Department of Justice that describes a variety of mathematical formulas that can be applied to determine how much spousal support should be paid and how long it should be paid for, once a spouse is found to be entitled to receive support. The Advisory Guidelines are not a law, although they are pretty useful.

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

Something which can be owned. See "chattels" and "real property."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

A term under the Divorce Act referring to an order for child support or spousal support. See "child support" and "spousal support."