What Law Applies?

Spousal support is available for married spouses under both the federal Divorce Act and the provincial Family Law Act . Spousal support is available to unmarried couples under the Family Law Act alone. 

• Divorce Act: The parties must be or have been married, and the person making the claim must have lived in the province in which the claim is made for at least a year before the action is started.
• BC Family Law Act: Provides for spousal support for married spouses, and for those couples who have been in a marriage-like relationship for at least 2 years. It may also be available for common-law spouses who have a child but have been together for less than two years.

Claims for spousal support have to be made within two years of the date of the divorce or annulment of the marriage or within two years of the date that unmarried spouses separated. 

Spousal Support is not Mandatory

Spousal support is not mandatory and a couple may agree that spousal support will not be paid. The court may not take into account “spousal misconduct,” such as adultery, or drug or alcohol abuse, when making an order for spousal support. However under Section 166 of the Family Law Act , the court can consider conduct that arbitrarily or unreasonably causes, prolongs or aggravates the need for spousal support or affects the ability to provide spousal support. 

A receiving spouse who is dependent on social assistance and has no other source of income may still be entitled to receive support from a former spouse.

How is Spousal Support Calculated?

As a general rule each case for spousal support is decided on the means, needs, and circumstances of the particular parties, but there are some general trends.

• Length of marriage: The longer the marriage, the greater the likelihood of an order for spousal support. As well, the longer the marriage is, the stronger the presumption will be that the parties should have an equal or almost equal standard of living after separation.
• Difference in incomes: The greater the difference is in income between the parties, the greater the likelihood will be that an order for spousal support will be made.
• Economic disadvantage: The more one spouse has lost as a result of the marriage, such as job skills, job opportunities or employability, the greater the likelihood of an order for spousal support.
• Earning capacity: The more one party’s earning capacity is reduced because of family obligations like child care, for example, the greater the likelihood of an order for spousal support.
• Existing orders or agreements: If the parties have already made some arrangements those will be considered. 

Judges must also consider whether spousal support would meet the following purposes:

• To compensate the spouse with the lower income for sacrificing some power to earn income during the marriage
• To compensate the spouse with the lower income for ongoing care of children
• To help a spouse who is in financial need if the other spouse has the ability to pay

A judge will also consider that a spouse who receives support has an obligation to become self-supporting, where reasonable.

Types of Spousal Payments

• Periodic payments: It is common to have support paid on a periodic basis, usually monthly, such as on the first of every month. You will need to agree to what this will look like, how much each payment will be and for how long it will be paid. 
• Lump-sum payments: It can sometimes be easier to pay a single lump sum for all of the support payments. Of course, the payor has to be able to pay a lump sum like that, and not everyone can.
• Division of property: It is possible that the way the family property and family debt is divided could satisfy the goal of a spousal support order. It's also possible that a payor could agree to give the recipient more of the family property in order to avoid a spousal support obligation.