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 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” – and which used to be referred to as “alimony.” Note that this discussion applies equally to support orders for married people and for people living in a common-law relationship or with a gay or lesbian partner.

What is spousal support?
In many cases, when a marriage or common-law relationship breaks down, a decision is made that one spouse or partner is responsible for the financial support or maintenance of the other spouse or partner. This is called spousal support.

Who is entitled to claim spousal support?
You may claim spousal support if you are legally married, or if you have been living in a common-law relationship or with a gay or lesbian partner. But if you’re not legally married, you can only apply for spousal support if:

• you have lived with your partner for two years before the separation, and
• your claim for spousal support is made within one year after you separate (although the deadline may be extended if your partner has continued to provide financial support after you separated) 

You don’t have to have children to obtain spousal support. And either spouse or partner can apply, so a husband who has been financially dependent on his wife may claim support from her.

It’s important to note that, unlike child support, there is no automatic entitlement to spousal support. Whether or not you are entitled to support, and how much you are entitled to, depends on the specific circumstances of each case.

How do you get support or maintenance?
Spousal support can be worked out in a separation agreement. If you can’t agree, the court can make an order for spousal support.

Which court do you go to?
Married people can apply for spousal support under both the federal Divorce Act and the provincial Family Relations Act. If they choose to apply for spousal support under the Divorce Act (or both Acts), then they must make an application in Supreme Court. If they apply for support under the Family Relations Act, they can apply to either the Supreme Court or the Provincial Court.

Spouses in a common-law (including same sex) relationship can only apply for spousal support under the Family Relations Act. They can apply for this support in either court.

The court documents and some of the rules and procedures are different, depending upon which court you apply to.

What is an “interim” order versus a “permanent” support order?
After a couple separates, it’s common to make arrangements for “interim” or temporary spousal support. This support is there while a married couple waits for their divorce to become finalized, or while a married or common-law couple wait for a comprehensive settlement agreement or final court order about all issues to be put in place.

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 marriage or relationship and after separation
• the ability and capability of each spouse to support themselves

Generally, if one spouse or partner supported the other during their relationship, that spouse will be expected to contribute to the support of the other after the relationship breaks down. On the other hand, if both partners were financially independent when together, then in general, neither will have to pay financial support to the other after they separate. 

In some cases, though, a spouse may be entitled to support even if they were not financially dependent on the other spouse. This support is called “compensatory spousal support” and is sometimes ordered where a spouse has been financially disadvantaged as a result of the marriage/relationship.

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 simply because they had an extra-marital affair, and a partner won’t be ordered to pay support simply because they were abusive to the other partner. The court considers all the circumstances and usually recognizes that a breakdown of a relationship is rarely the fault of one person.

How is the amount of spousal support determined?
Once it’s been determined that a spouse or partner should receive spousal support, then the court decides the amount of support (or the lawyers agree to the amount) based on several factors, including:

• the financial situation of each spouse
• the needs of each spouse
• the lifestyle and standard of living the couple enjoyed before they separated

Generally, efforts are made to try to ensure that spouses have a similar standard of living after their relationship ends.

Spousal Support Advisory Guidelines are available to calculate appropriate ranges for the amount and duration of spousal support that should be paid. These guidelines use complicated formulas to determine the ranges, so computer programs such as Divorce Mate are generally necessary. Your lawyer may have access to this program.

Do spouses have to disclose all their finances?
Detailed financial disclosure is required of both spouses or partners. The financial statements necessary to present financial information to the court in an application for support can be complicated. You may need the help of a lawyer to complete them.  

What are the tax consequences of support?
Spousal support is taxable income in the hands of the partner who receives it. And the partner who pays spousal support is able to write off spousal support payments for income tax purposes. This is true if the spousal support is made in accordance with a written agreement or a court order, is actually paid, is periodic, and meets the other requirements of the Income Tax Act.

The tax consequences of support payments must therefore 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 Maintenance and Support.”

How long is spousal support paid for?
The law expects each partner 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.

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, the harder it is to get a job. Thus, the longer the marriage, 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 partner after spousal support has been ordered. Even after a divorce is finalized or a permanent support order has been made, the amount of support can be changed if either spouse’s income or relevant circumstances change. Generally, the reason for such a change must be significant and one that wasn’t foreseeable when the existing support order was made, if the existing order is a permanent one.

What can you do if your spouse won’t pay the support?
If your spouse or partner doesn’t pay spousal support as ordered or agreed, the Family Maintenance Enforcement Program can help you free of charge. Staff can 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 Maintenance, Support Orders and Agreements.”

What happens if you are on social assistance?
If you are applying for or receiving social assistance, you may be required to sign a form that “assigns” your spousal support rights to the Ministry in charge. 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.

• 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. Phone 604.660.2421 in Greater Vancouver, 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. 
• Also see the Family Justice website at www.ag.gov.bc.ca/family-justice.

[updated December 2009]

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