Difference between revisions of "Introduction to Spousal Support"

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{{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://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation|date= May 2017}} {{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.
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'''.
==Understand your legal rights==  
==Understand your legal rights==  
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:Web: [http://wiki.clicklaw.bc.ca/index.php/Spousal_Support wiki.clicklaw.bc.ca]
:Web: [http://wiki.clicklaw.bc.ca/index.php/Spousal_Support wiki.clicklaw.bc.ca]
{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}

Revision as of 15:25, 29 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Zahra H. Jimale, Jimale Law Corporation in May 2017.

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.

Understand your legal rights[edit]

Spousal support helps a former spouse with living expenses[edit]

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.

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.

Who can claim spousal support[edit]

Everyone who qualifies as a “spouse” can claim spousal support after separation.

Under the federal Divorce Act, spouses are people who are 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.

When a spouse is entitled to spousal support[edit]

Spousal support is intended to do four things:

  • recognize any financial advantages or disadvantages a spouse may face because of the relationship or the breakup
  • 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:

  • 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.

The effect of a spouse’s behaviour on support[edit]

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.

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

  • 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[edit]

Where a spouse is entitled to receive spousal support, the amount of spousal support is usually determined using the Spousal Support Advisory Guidelines. These Guidelines are used whether the amount is being determined by a court or negotiated by the parties.

The Guidelines use a number of mathematical formulas to calculate spousal support ranges and the length of time for which support should be paid.

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 mysupportcalculator.ca that can do simple calculations.

How long spousal support is paid for[edit]

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.

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.

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.

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.

How to get spousal support[edit]

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.

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.

Which court to go to[edit]

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).

Getting “interim” support[edit]

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).

Both spouses must provide full financial disclosure[edit]

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.

Common questions[edit]

What are the tax consequences of spousal support?[edit]

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.

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.

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 the tax implications of support payments (no. 133).

What if I’m on income assistance?[edit]

After a couple separates, if one spouse applies for or is receiving income assistance, the BC government may ask them to 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?[edit]

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.

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

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).

Get help[edit]

With spousal support[edit]

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: justicebc.ca/en/fam

More information[edit]

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: familylaw.lss.bc.ca

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

Web: wiki.clicklaw.bc.ca
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