Understanding Spousal Support in British Columbia: Part 1
Spousal support is payment of financial support by a higher earning spouse to a lower or non-income earning spouse after the breakdown of a marriage or marriage-like relationship. Spousal support is intended either to compensate a spouse for their economic sacrifices made during the relationship, or to address a lower-income earning spouse’s need at the end of the relationship.
Criteria for Spousal Support Eligibility in British Columbia
The first step to take when assessing a spousal support claim is to determine whether a spouse is in fact entitled to receive spousal support. A spousal relationship alone does not automatically lead to entitlement, even after a long relationship. Nor is a difference in income alone enough to trigger a spousal support obligation after separation.
Entitlement to spousal support is based on:
- compensation to a spouse for the roles that they performed during the spousal relationship (also called compensatory spousal support);
- need that a spouse has after the relationship has ended (also called non-compensatory spousal support); or a mixture of both, especially in long spousal relationships. Entitlement may also arise through
- a contractual, or consensual arrangement between spouses, i.e., in the form of a marriage (pre-nuptial) or cohabitation agreement.
The Concept of Compensatory Spousal Support
Compensatory spousal support is based on a contemporary understanding of the spousal relationship, according to which spouses are seen as equal and independent individuals, who through the course of their spousal relationship make decisions which have economic consequences that impact each of them after the relationship ends. For example, one spouse may shoulder more responsibilities associated with raising children, while the other may be the primary income earner. Compensatory support is intended to provide economic restitution to a spouse for the financial costs of those decisions, to enable a “clean break” following separation.
Key Indicators of Compensatory Spousal Support Claims
Some of the most common telltales of a strong compensatory claim include full-time and part-time homemaking (which often leads to that spouse having primary care of children after separation), moving to support the other spouse’s career, and supporting a spouse’s education or vocational training.
Common Mistakes Made When Assessing Compensatory Spousal Support
Some common mistakes that family lawyers make when assessing compensatory claims include failing to fully account for where a spouse would have been in their career had they continued in the labour market. Often missed is the fact that a spouse may have suffered career loss even while working, because of competing commitments raising children, or that child-rearing responsibilities often continue after separation, limiting career growth. On the flipside, a dedicated career, free from child-rearing responsibilities is itself an economic advantage that should be quantified but often is not.
Explaining Non-Compensatory Spousal Support
Non-compensatory spousal support is based on a more traditional understanding of marriage which acknowledges the financial interdependence that marriage creates, and the potential economic inequality that may result when a marriage ends. A spouse with greater financial means has a “basic social obligation” to be primarily responsible to provide for the needs of his or her spouse after their marriage ends, rather than the government. Essentially, spousal support is necessary to replace income previously received by a spouse during the spousal relationship.
Signs of a Strong Non-Compensatory Support Claim
Common indicators of a strong non-compensatory claim include a long spousal relationship (though length alone will not result in entitlement), significant decline in standard of living from the marital standard resulting in need, and economic hardship experienced by a spouse after separation.
Unifying Compensatory and Non-Compensatory Spousal Support Theories
The starting point when assessing entitlement is that to varying degrees a spousal relationship is both a socio-economic partnership (the more modern rational for compensatory support) and a “joint endeavour” (the traditional basis for non-compensatory support). The “merger over time” rational has emerged in the case law, which posits that over time the lives of both spouses merge in every aspect, and spouses become ever more dependent on each other. This approach blends both compensatory and non-compensatory theories of support. More recently, the parental partnership rationale has also emerged in the caselaw. In this approach, the obligation for spousal support flows from parenthood rather than the marital relationship itself.
The Legal Framework for Spousal Support in British Columbia
Canadian federal legislation and provincial legislation acknowledge compensatory and non-compensatory basis for spousal support. Spousal support is governed Federally by s. 15.2 of the Divorce Act and in British Columbia by ss. 160 – 169 of the Family Law Act. The objectives of both Federal and Provincial legislation are the same. Spousal support should:
- recognize any economic advantages or disadvantages to the spouses arising from their relationship or the breakdown of that relationship (compensatory);
- apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
- relieve any economic hardship of the spouses arising from the breakdown of the relationship;
- promote the economic self-sufficiency of each spouse within a reasonable period of time.
Case Law Review: Spousal Support in British Columbia
A review of the case law shows that while entitlement is often determined by a mix of both compensatory and non-compensatory factors, compensation continues to be the main basis for support. In British Columbia the courts have tended to award non-compensatory support awards in cases where there is economic hardship and not simply inequality of incomes or a lower standard of living following separation. This has been the case even following lengthy spousal relationships. However, non- compensatory support still plays a significant role in many cases. For example, when a spouse is sick or disabled, a support obligation might exist even without a compensatory basis. In cases where earning capacity of a needy spouse is permanently limited by age, illness or disability, support may be awarded without regard to the cause of that need.
In conclusion, understanding the nuances of spousal support in BC is crucial for those navigating a separation or divorce. Recognizing the elements of compensatory and non-compensatory spousal support, and the legal frameworks that guide them, can help in ensuring fair outcomes for both parties. Nonetheless, complexities abound and there are numerous factors at play when it comes to entitlement and types of support.
Stay tuned for Part 2 of our discussion (Understanding Spousal Support in British Columbia: Part 2,) where we will delve into the practicalities of determining the amount and duration of spousal support, alongside an explanation of the Spousal Support Advisory Guidelines (SSAG). We will also examine how spousal support is assessed in different scenarios such as those involving children, and when there are none. We’ll end with some practical tips to avoid common mistakes when navigating spousal support issues.