Spousal Support (Script 123)
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This script discusses spousal support, sometimes called “maintenance” or “alimony”. This discussion applies equally to married spouses and unmarried spouses.
- 1 What is spousal support?
- 2 Who can claim spousal support?
- 3 How to get spousal support?
- 4 Which court to go to?
- 5 What are “interim” support orders and “final” support orders?
- 6 How does the court decide if spousal support should be ordered?
- 7 Does a spouse’s behaviour affect whether support is paid?
- 8 How is the amount of spousal support determined?
- 9 Do spouses have to disclose all their finances when someone is asking for spousal support?
- 10 What are the tax consequences of spousal support?
- 11 How long is spousal support paid for?
- 12 What happens if circumstances change?
- 13 What to do if the spouse won’t pay the support?
- 14 What happens if the recipient is on social assistance?
- 15 More information
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 is not paid just because a couple was married or was in a marriage-like 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 below.
Who can claim spousal support?
Everyone who qualifies as a “spouse” can claim spousal support after separation. Spouses are people who:
- are married;
- 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 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 to get spousal support?
Arrangements for the payment of spousal support can be made in a separation agreement. If spouses cannot agree on the payment of spousal support, the court can make an order requiring the payment of spousal support if entitlement is proven.
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 divorce or nullity of a marriage for married spouses, or within two years of the date of separation for unmarried spouses.
Which court to 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 case asking for an order for spousal support, and for other orders such as for divorce, if they are married, or about the parenting arrangements for a child. In between the beginning of the court case and its end, spouses may 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, including:
- 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 child
- 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 a child, or 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 will not 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 conduct 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 has been decided that a spouse should receive spousal support, the amount of spousal support is usually determined using the Spousal Support Advisory Guidelines, whether the amount is being determined by the court or negotiated by the parties. The Guidelines use a number of mathematical formulas to calculate ranges spousal support amounts and the length of time for which it should be paid.
The formulas used to determine these ranges can be very complicated, especially if a child is involved, and it’s usually necessary to use a computer program. Lawyers have access to sophisticated software called DivorceMate to determine the ranges of duration of spousal support. Alternatively, the simplified calculator is 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; thus, the help of a lawyer may be needed.
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.
Only spousal support payments that are paid on a periodic basis; for example once a month or once every two weeks, 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. 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 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 return to the work-force or retrain. 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 or agreed to. 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 must not have been foreseeable when the support order or agreement was made.
What to do if the spouse won’t pay the support?
If the spouse does not pay spousal support as ordered or agreed, the Family Maintenance Enforcement Program (FMEP) can help free of charge. FMEP will help 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”.
If the recipient of spousal support is applying for or receiving social assistance, she or he will be required to sign a form that assigns any rights she or he 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 the recipient’s 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.
- 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 (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 nearest Family Justice Centre.
- See the Family Justice website.
- See the Spousal Support section of the wikibook JP Boyd on Family Law, published by Courthouse Libraries BC.
[updated May 2017]
The above was last reviewed for accuracy by Zahra H. Jimale.
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