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Family Law Act Basics

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→‎The law about spousal support

Only spouses can ask for spousal support. Under the ''[[Family Law Act]]'', for the purposes of spousal support, "spouse" includes people who:

#*are married to each other, or used to be married to each other;,#*have lived together in a marriage-like relationship for at least two years; and,#*have lived together in a marriage-like relationship for less than two years and have had a child together.

A spouse’s entitlement to spousal support is determined based on objectives taken from section 15.2(6) of the ''[[Divorce Act]]'', set out at section 161 of the ''Family Law Act'':

Under the ''[[Family Law Act]]'':

#*married spouses have to start a court proceeding asking for spousal support within two years from the date ''they were divorced'' or their ''marriage was annulled'', and#*unmarried spouses have to start a proceeding for spousal support within two years from the date ''they separated''.

Remember that these limits are for the ''Family Law Act'' — there are no limits about when married spouses can ask for spousal support under the ''[[Divorce Act]]''.

The Spousal Support Advisory Guidelines have two basic formulas that are used to calculate the amount of spousal support and the length of time it should be paid for: one when the spouses have children and one for when they do not. The formulas take into account a bunch of information, including:

#*the income of the payor, the person paying spousal support, and the income of the recipient, the person receiving spousal support;,#*the length of the spouses' relationship;,#*the age of each spouse;,#*how much child support is being paid;,#*how much is being spent on the children's special or extraordinary expenses; and,#*the age of each child and what grade they are at in school.

More information about spousal support is available in the [[Spousal Support]] chapter and the section on the [[The Spousal Support Advisory Guidelines]].

Under the ''[[Divorce Act]]'', the court is not allowed to consider a spouse's behaviour during the marriage when making an order about spousal support. The same thing is generally true under the ''[[Family Law Act]]'', except that under this act the court can take into account misconduct that:

#*unreasonably prolongs a spouse's need for support; or,#*unreasonably undermines a spouse's ability to pay support.

In other words, the court can look at whether a spouse is being unreasonable in not becoming financially self-sufficient and whether a spouse has reduced work hours, quit a job, or refused to take a job in order to avoid paying support.

People often try to avoid this problem by agreeing that spousal support will be paid for now, but that support will be reconsidered in a ''review'', after a certain amount of time has passed or when a certain event has happened. The ''[[Family Law Act]]'' says that agreements and orders for spousal support can be ''reviewable''. Agreements and orders for reviewable spousal support can specify:

#*what will trigger the review;,#*the dispute resolution process that will be used at the review; and,#*the factors that will be considered at the review.

The ''Family Law Act'' says that a review can also be triggered when someone begins to receive a pension, even if the agreement or order for spousal support doesn’t call for the review.

Under section 167 of the ''[[Family Law Act]]'', the court can change an order for spousal support if:

#*there has been a change in circumstances that would result in a different amount of support being paid;,#*new evidence has been discovered since the last hearing about spousal support; or,#*proof of a lack of financial disclosure has been discovered since the last spousal support order.

====When both spouses live in British Columbia====

If the application is heard by a court, the court may decide to:

#*ask the applicant for more information;,#*delay the hearing if more information is needed;,#*dismiss the application; or,#*make a variation order.

More information about how spousal support orders are changed when one of the spouses lives outside British Columbia is available in the [[Spousal Support]] chapter.

Alise Nelson

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Family Law Act Basics

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