Script 123 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses spousal support payments, sometimes called “maintenance” or “alimony”. This discussion applies equally to support orders for married spouses and unmarried spouse.
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:
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?
Spousal support can be worked out in a separation agreement. If you can’t agree, the court can make an order for 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 within two years of the date of separation for unmarried spouses.
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 an application in Supreme Court. If they apply for support under the Family Law Act, they can apply to 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 other orders such as for divorce, if they are married, or about the care 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
the functions performed by each spouse during their relationship
the financial consequences arising from the care of any children of the relationship
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 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 conduct that:
unreasonably causes or prolongs a need for spousal support; or
unreasonably affects a person’s ability to pay spousal support
How is the amount of spousal support determined?
Once it’s been determined 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 and duration of spousal support that should be paid. The formulas used to determine these ranges can be very complicated, and it’s usually necessary to use a computer program; your lawyer will have access to a program like this.
Do spouses have to disclose all their finances?
Full financial disclosure is required of both spouses when making decisions about spousal support, including the first decision about whether a spouse is entitled to receive spousal support. Whether spousal support is being decided by the court or negotiated by the parties, it is common for both spouses to complete financial statements (Form F8 in the Supreme Court and Form 4 in the Provincial Court). These financial statements 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 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 pursuant to 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.
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, refer to script 133 on the “Income Tax Implications of Support Payments”.
How long is spousal support paid for?
The law expects each spousal to make reasonable efforts to become self-supporting if 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 marriage is 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 marriage is, the less likely it is that a stay-at-home spouse will have to look for work and the more likely 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 receive or apply for spousal support to the Ministry. This allows the Ministry to take whatever steps it deems 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.
[updated March 2013]
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