Basic Principles of Spousal Support

Spousal support can be payable, or not payable, because of a family law agreement or because of a court order. When support can't be agreed on, married and formerly married spouses can apply for spousal support under the federal Divorce Act. Although both married and unmarried spouses can apply for spousal support under the provincial Family Law Act, there are special rules about how a couple qualify as spouses under that act and special rules about when claims for spousal support can be made.

This section provides an introduction to the basic principles of the law on spousal support, and explores how spousal support is awarded under the Divorce Act and the Family Law Act.

It also discusses the basics of calculating the amount of support to be paid when someone is entitled to receive it, and looks at the sort of support orders the court can make, including interim and final orders.

Introduction

When analyzing a spousal support claim, the court will consider the following questions:

• Is the person applying as a spouse? That is, do they fit within the category of persons allowed to apply? Or, as it is sometimes put, do they have standing to apply?
• Is the person applying in time? That is, do they fit within the applicable limitation period?
• Has the person demonstrated an entitlement to spousal support?
• If all of the above are answered, “yes”, what is the appropriate amount and duration of support?

The first two vary depending on which act the person is relying on. The third, entitlement, is common to both the Divorce Act and the Family Law Act. Generally speaking, entitlement to spousal support is established where:

1. a spouse has suffered economic loss or hardship as a result of the relationship or the breakdown of the relationship (called compensatory entitlement),
2. there is a contract between the spouses that requires that spousal support be paid (contractual entitlement), or
3. a spouse is in financial need after separation and the other spouse has the ability and disposable income to meet that need (needs-based entitlement). Need, in this context, is not limited to the basic necessities, but can mean being unable to maintain the prior married standard of living without assistance.

A person who is claiming spousal support in court will generally wind up making their application based on one of these grounds. In determining whether the ground has been proven, the court will look at the factors and requirements set out in the relevant legislation.

In BC, the amount and duration of support are largely determined with reference to The Spousal Support Advisory Guidelines.

The Divorce Act

Standing and the Divorce Act

If the claim for spousal support is being made under the federal Divorce Act, the parties must be or have been married, and the person asking for spousal support must have lived in the province in which the court proceeding is started for at least a year before the proceeding is started in order to have standing.

Limitation periods and the Divorce Act

The Divorce Act doesn't have any rule about when an application for support can be brought following divorce. Under the Divorce Act, a spouse is always a spouse entitled to apply for support. Nonetheless, the court may dismiss a claim based on delay. (If you wait several years, the court may wonder whether you really needed support at all.) So, it is still important to pursue support as soon as reasonably possible.

Entitlement and the Divorce Act

The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 15.2(6) of the Divorce Act. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 15.2(4).

Amount and duration of support

The Spousal Support Advisory Guidelines may also be used to help decide how much support should be paid and for how long it should be paid.

The Family Law Act

Standing under the FLA

If the claim is being made under the provincial Family Law Act, spousal support is available for married and unmarried spouses. For unmarried spouses, spousal support may be payable, providing that:

1. the parties lived in a marriage-like relationship for a continuous period of at least two years, or
2. the parties lived in a marriage-like relationship for less than two years and have a child together.

As to what constitutes a “marriage-like relationship,” the courts take a holistic approach. The presence or absence of any particular factor is not determinative: Austin v. Goerz 2007 BCCA 586 and Weber v. Leclerc, 2015 BCCA 492. It does not require a blending of finances, monogamy, planning for retirement or death, a decision to have children, or other hallmarks of traditional (whatever that is) marriage. The presence of such factors can help; but their absence may not be fatal. What is essential is that the court can see a committed relationship in some sense sufficient to raise an obligation for support. That may sound circular (and it is), but it is nonetheless the task for a judge where the question is in doubt.

If the parties have a child, and live together with that child in a marriage-like relationship, a plain reading of the statute suggests that not only is two years co-habitation not required, any length of cohabitation will do. So far, at least one case seems to agree: J.M. v. R.B., 2014 BCPC 269, at paragraph 90 (discussing a similar test under section 39).

Limitation period

Married spouses must start a court proceeding claiming spousal support within two years of the date of their divorce or an order annulling their marriage. Unmarried spouses must start a court proceeding within two years of the date of their separation.

“Separation” does not equate to moving out. Under section 3(4) of the the Family Law Act, for spouses to be separated there must be:

• communication by one spouse of an intention to separate permanently, and
• some action to demonstrate this intention.

That could be moving into the guest room, or onto the couch. Spouses can be separated while still living under the same roof. Two years from the date of separation — especially where "separation" can be uncertain – is a short period of time. It can take you by surprise and sneak up on you, especially if it "feels" like you are still together, even if desperately unhappy. If there is any doubt whether you have been separated, seek legal advice.

In certain cases, if a former spouse has been led by the other spouse to feel they are still together, or that the other spouse will not take advantage of the limitation period, the other spouse my be prevented (estopped) from relying on the limitation period. Such will be the case, for example, where the other spouse makes voluntary support payments: Pierce v. Pierce, 1997 CanLII 2583. But do not place all your hopes in this basket. If there is talk of separation, better to know your rights than be sorry you didn’t.

The limitation period will also be suspended for so long as the parties engage in "family dispute resolution with a family dispute resolution professional." These are defined terms and regrettably do not apply to all efforts to resolve the dispute out of court.

Entitlement

The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 161 of the Family Law Act. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 162. The Family Law Act objectives and factors for spousal support are the same as the Divorce Act objectives and factors

Amount and duration

The Spousal Support Advisory Guidelines may also be used to help decide how much support should be paid and for how long it should be paid.

June and Ward Cleaver: An explanation of spousal support

The point of spousal support is to provide assistance to a spouse who is financially dependent on the other spouse, or to a spouse who has been financially disadvantaged as a result of the relationship. Let's use the classic TV show, Leave it to Beaver as an example.

June and Ward are married and have a very traditional relationship. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.

June, who might well have been a research scientist at NASA before she got married, has chosen to abandon her career to take care of Wally and the Beaver and make sure that Ward has a nice hot dinner waiting when he comes home.

Ward, on the other hand, has been given the opportunity to have a fabulous career. June's labour in the home has freed his time up so that he can go to work and get raises and promotions, without having to worry about getting the Beaver ready for school, preparing meals for the family, or doing the dishes.

Skip forward a few years. Ward discovers that June's relationship with the mail carrier isn't quite as business-like as he'd thought. Ward and June separate, Wally moves in with his girlfriend, and the Beaver stays with June in the former family home. Ward moves into a new apartment with his secretary.

As a result of the way that Ward and June handled their marriage, Ward has been allowed to pursue a successful career and earn lots of money. Ward is in a great position to move on with his life.

June, however, isn't so lucky. Her research skills from her work at NASA are obsolete, her master's degree in orbital dynamics isn't relevant any more, and she has no idea how to operate the fancy new equipment that NASA has bought since she last worked there. Making matters worse, the last entry on her resume is fifteen years old. If June's going to go back to work, it won't be at NASA, it'll be at Tim Hortons.

In this example, June has been financially disadvantaged as a result of the marriage. While Ward is in good shape and his career shows no sign of decline, June has no way to easily re-enter the workforce because her job skills are out-of-date. Of course, they have two great kids, but the best job June will be able to get will be as a Tim Hortons trainee, and that won't pay enough to cover the cost of the mortgage, the gas bill, the phone bill, and all of life's sundry other expenses.

As a result of how Ward and June elected to manage their marriage, Ward will, in all likelihood, have to pay spousal support to June to help her get by and help maintain the house while she upgrades her education and gets some job retraining.

Spousal support and the division of property

The issues of spousal support and the division of the family property are somewhat intertwined. Before the Family Law Act, the court had to turn its mind to the question of spousal support after the family property, if any, had been divided between the parties. In other words, the division of property might have been adjusted in such a way as to have a direct effect on the support recipient’s need for support. There may have been no need, or the amount of support required may have been simply a top up to the order for property division for the objectives of spousal support to be met.

Now, the order is reversed. The court considers spousal support first and if, say, the paying spouse did not have the means to pay proper support, the court may adjust property division to redress the balance.

Spousal support, fault and misconduct

Divorce in Canada has been no-fault since the Divorce Act was updated in 1968, and the Family Relations Act followed suit when it was introduced in 1972.

A no-fault system means that the conduct of the spouses during their relationship and the reasons why their relationship has ended have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how property and debt are divided. Whether someone was abusive or a cheater, for example, is not relevant to the court's consideration of these issues. In fact, s. 15.2(5) of the Divorce Act says:

In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

The Supreme Court of Canada, in a 2006 Divorce Act case called Leskun v. Leskun, [2006] SCC 25, confirmed that the misconduct of the spouses must not be taken into consideration in making a decision about whether spousal support should be paid following the end of their marriage. But even in Leskun, the court distinguished between misconduct itself and the effects of misconduct on the parties after separation:

21. There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the [Divorce Act] however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

The Family Law Act takes a slightly different approach. Section 166 says this:

In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably

(a) causes, prolongs or aggravates the need for spousal support, or

(b) affects the ability to provide spousal support.

In other words, under the Family Law Act, the court cannot consider misconduct generally (the same as under the Divorce Act), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the conduct has undermined the payor's ability to pay support.

Securing a spousal support obligation

Under s. 170 of the Family Law Act, the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may:

• order that a charge be registered against property,
• require a payor with life insurance to maintain that policy and specify that a spouse will be the beneficiary of the policy, or
• order that spousal support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires spousal support to be paid from the payor's estate, under s. 171(1), the court must consider:

• whether the recipient's need for support will survive the payor's death,
• whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate and,
• whether any other means exist to meet the recipient's needs.

Spousal support when the payor dies

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the Family Law Act that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's personal representative, the person managing the payor's estate and will, has the right to defend against the recipient's application or to vary or terminate a continuing obligation.

The objectives and factors of spousal support

Under s. 160 of the Family Law Act, when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the objectives set out in s. 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the factors set out in s. 162.

Section 15.2(6) of the Divorce Act and s. 161 of the Family Law Act set out the objectives for a spousal support order:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; and

(d) as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment.

The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make their best efforts to become self-sufficient at some point following separation. A spousal relationship is not intended to be a lifelong meal ticket; at some point, a dependant spouse must usually become independent.

These sections of the Divorce Act and the Family Law Act allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows them to meet their daily needs.

While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents them from becoming independent, there will likely be an end date to support payments.

Section 15.2(4) of the Divorce Act and s. 162 of the Family Law Act set out the factors for a spousal support order:

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during the period they lived together; and

(c) an agreement between the spouses, or an order, relating to support of either spouse.

These factors help the court decide how much spousal support should be paid and for how long, but the court will consider facts about the spouses, their relationship, and their circumstances in addition to these.

Spousal support and child support

Section 15.3 of the Divorce Act and s. 173 of the Family Law Act state that child support must take priority over an order for spousal support. When the payor cannot pay both spousal support and child support, the court is required to make an order for child support at the expense of an order for spousal support. Children come first.

Statutory provisions

These are the primary sections of the Divorce Act dealing with spousal support:

• s. 2: definitions
• s. 4: jurisdiction to make spousal support orders
• s. 5: jurisdiction to change orders
• s. 15: definition of spouse
• s. 15.2: spousal support orders
• s. 15.3: child support has priority over spousal support
• s. 17: varying support orders

These are the primary sections of the Family Law Act dealing with spousal support:

• s. 1: definitions
• s. 3: spouses and relationships between spouses
• s. 146: more definitions
• s. 161: objectives of spousal support
• s. 162: factors to determine the amount and duration of spousal support
• s. 163: agreements about spousal support
• s. 164: setting aside agreements about spousal support
• s. 166: misconduct
• s. 167: varying spousal support orders
• s. 168: review of spousal support
• s. 170: things that may be included in support orders
• s. 171: support obligations after death (of payor)
• ss. 172 and 173: spousal support and child support
• s. 174: cancellation or reduction of arrears
• s. 198: time limits

Calculating spousal support

Once it is decided that a person is entitled to spousal support, the amount of spousal support has to be calculated. It is difficult to predict exactly how much spousal support will be paid in any given case. Many different factors can influence the amount spousal support. However, in British Columbia the Spousal Support Advisory Guidelines are frequently used by the courts to determine the amount of spousal support and so the Guidelines are a good starting point.

You can visit DIVORCEmate’s website for their free spousal support calculator. This calculator is very good for simple situations, but if there is anything complicated about your circumstances you may want to meet with a lawyer who has bought DIVORCEmate’s expensive commercial software. The lawyer should be able to give you some fairly fine-tuned numbers. This chapter’s section on the Spousal Support Advisory Guidelines discusses the Advisory Guidelines formulas in a lot more detail.

In addition to considering the Spousal Support Advisory Guidelines, it is important that each party prepare a sworn financial statement whether a court proceeding has been started or not. In provincial court, the Financial Statement is called a Form 4, and in Supreme Court, the Financial Statement is called a Form F8. The financial statement sets out each party’s income and assets, expenses and liabilities.

When a spousal support calculation is done according to the Spousal Support Advisory Guidelines, the calculation sets out three amounts of possible spousal support: a low amount, a mid amount, and a high amount (mysupportcalculator.ca only provides the high and low amounts, not the mid amount of the range). There can be hundreds of dollars difference between the low and high amounts of spousal support. The expenses of the parties that are set out in their financial statements can help the court decide whether spousal support should be at the low amount, the mid amount, the high amount or even outside of the amounts suggested by the Spousal Support Advisory Guidelines entirely.

Ideally, a spousal support payment will leave both parties (not just the party who earns more money) with enough to look after their living expenses. The court will not bankrupt a payor in order to meet the dependent spouse’s needs. In many cases, this means that both parties must adjust their standard of living to be able to live within the pool of income available to them. The parties’ expenses on their financial statement can help show how much money each party needs to meet their living expenses and how much money the payor has left over to pay spousal support after their reasonable monthly living expenses for things like rent, utilities, groceries, and so forth are met.

Orders and agreements on spousal support

Spousal support is a very grey area of the law, with few hard and fast rules. As a result, every order or agreement dealing with spousal support will be tailored to the particular circumstances of the parties, even orders and agreements that say that no spousal support will be paid.

Interim orders and agreements

Interim orders are temporary orders made once a court proceeding has started. Interim orders are not meant to be permanent. They last until another interim order is made or the proceeding wraps up with a trial or a settlement. Likewise, interim agreements are agreements made when settlement discussions have started, and they are meant to last only until a final agreement is negotiated.

The court will think about the same things when it hears an application for an interim spousal support order as it does at the hearing for a final order. At least, that's the general rule. In reality, however, the court usually takes a pretty rough and ready approach to interim applications based on something called the means and needs test. This test asks:

• Does the person making the application, the applicant, have a need for support?
• Does the other person, the respondent, have the means to pay it?

The court will not usually attempt to decide whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In a case called L.G.B. v. M.A.C.M., 2005 BCSC 1786 (a 2005 decision of our Supreme Court), the judge said that interim spousal support should only be awarded where an obvious case for entitlement is made out.

Spousal support will often be awarded on an interim basis where:

• there are young children who need a stay-at-home caregiver,
• the applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years,
• the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills, or
• the applicant is employed but is unable to pay the household bills without help.

Of course, need alone isn't enough, and the person against whom the application is brought must have the ability to actually pay support. Whether the payor has the means to pay support is usually figured out by looking at the payor's monthly income, less any child support obligations, and less their reasonable monthly expenses. If there is money left over, (disposable income), some or all of that money is available to be paid as spousal support.

Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes enough to help the applicant enjoy more or less the same standard of living that they enjoyed before the parties separated.

Final orders and agreements: periodic payments

Under the Divorce Act and the Family Law Act, a court may make an order for spousal support for regular payments, called periodic payments, to run for a fixed period of time (a definite term), or to run without a particular end date (an indefinite term). Whether an order requires that spousal support be paid for a definite or indefinite term will depend on the particular circumstances of each case. In general, however, the longer the relationship was and the older the parties are, the more likely it is that the court will make an indefinite order for spousal support.

Indefinite obligations

Indefinite orders for spousal support are often made where one or more of the following circumstances exist:

• the parties' relationship was lengthy,
• the recipient is unable to re-enter the work force because of physical or mental health issues,
• the recipient is elderly and unable or likely unable to re-enter the workforce,
• the recipient's child care or other obligations make it impossible for them to re-enter the workforce, or
• the consequences of the breakdown of the relationship, including mental health issues such as depression, have left the recipient unable to work.

An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are:

• if the recipient remarries,
• if the recipient lives with another person in a marriage-like relationship for longer than a certain amount of time,
• if the recipient obtains employment and earns more than a specified amount,
• if the payor retires, or
• if the recipient or the payor dies.

Reviewable orders and agreements

Under s. 168 of the Family Law Act, an order or agreement that requires the payment of spousal support can be reviewable.

A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a review date. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as:

• the children leaving home,
• the recipient recovering from an illness,
• the recipient becoming employed or finishing a course of training or education,
• the recipient or the payor reaching a certain age or retiring,
• the recipient or the payor beginning to receive pension benefits,
• the sale of a property, or
• the recipient entering into a new spousal relationship.

When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation usually continues until the review finally takes place, whether the review is started by the recipient or the payor.

At the review, either spouse may seek to cancel or extend the support obligation, or to reduce or increase the amount of spousal support paid. The review will usually be based on parties' financial circumstances at the time of the review, but can take into account other factors, like the recipient's health or the recipient's efforts to find employment. A reviewable order or agreement can specify how the review will be conducted, which might be by mediation, a collaborative settlement process, or arbitration. Reviews don't have to happen in court.

Definite-term obligations

Orders or agreements that provide that spousal support is to be paid for a specific period of time are usually made when it is clear that a dependant person has the ability to become self-sufficient within a fairly short amount of time or a payor's resources are plainly limited.

Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship:

• the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs,
• the recipient has relevant job training or skills at the time that the relationship breaks down and is expected to return to work in short order,
• the recipient had a successful career before or during the relationship and is expected to return to work in short order,
• the recipient merely requires some time to adjust to their new living circumstances and will become self-sufficient relatively quickly, or
• the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force.

The length of time for which support must be paid usually reflects one or more of the following factors:

• the length of the parties' relationship,
• the extent and nature of the parties' employment during their relationship,
• the time the court estimates it will take the recipient to complete job training, if unemployed,
• the amount of the recipient's income, if employed,
• the payor's retirement date,
• the recipient's anticipated length of recovery from an illness, or
• the age at which the children will enter school or the age at which they can enter daycare.

Final orders and agreements: lump-sum payments

A lump sum order or agreement for spousal support requires the payor to make a large, one-time-only payment of spousal support. This kind of spousal support payment is fairly rare, partly because the payment of a lump sum of spousal support is often difficult to distinguish from the division of property, partly because a lump-sum payment may not adequately address the need the payment of spousal support is meant to address, and partly because few payors can afford to make a lump-sum payment.

Whether the court is dealing with an application for lump-sum spousal support rather than the more usual periodic-payment support obligation, the court will usually be concerned that the payment of spousal support isn't going to act as a substitute for the division of family property. The court will also be concerned that a lump-sum payment may not actually help the recipient become financially independent.

Payors are sometimes interested in lump-sum spousal support payments for the reason that the single payment will allow them to wash their hands of the other party and have done with it immediately, rather than having to deal with the other party on an ongoing basis. Recipients are usually interested in lump-sum spousal support payments where the cash is needed to make a down payment or some other payment that will contribute to their future security.

The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where:

• the payor has a history of failing to make periodic support payments,
• the payor has been dishonest or deceitful during the trial, particularly with respect to the extent of their finances,
• there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments,
• the money is necessary to provide a home for the recipient,
• the money is necessary to give the recipient financial security that cannot be had by periodic payments,
• the payor is financially well-off and can afford to make the payment,
• the payor is able to pay a lump sum and the likelihood of the payor being able to make future periodic payments of support is low,
• the money will promote the recipient's self-sufficiency, or
• periodic payments will not encourage the recipient to become self-sufficient.

Lump-sum awards are available on interim applications, but such awards are unusual. A lump-sum payment may be ordered if it is clear that:

• the payment will provide immediate relief for the recipient,
• ongoing monthly payments will not be necessary, and
• the payor has the ability to make the payment.

Resources and links

Legislation

• Family Law Act
• Divorce Act

Documents

• Spousal Support Advisory Guidelines

Links

• Free Basic Spousal Support Calculator from DIVORCEmate
• ChildView Spousal Support Calculator Software
• Department of Justice: About spousal support
• Legal Services Society's Family Law website: Spousal support
• Canadian Bar Association BC Branch: Script on spousal support

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by David Dundee and Gillian Oliver, May 15, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.