Facing the challenges of spousal support in a marriage or a marriage-like relationship. Seek the experienced counsel of Vancouver family lawyers at Mills Family Law. With a rich background in advocating for equitable spousal support outcomes, we aim to reduce conflicts while catering to your specific requirements.
At the end of your marriage or marriage-like relationship, you may be entitled to spousal support. At Mills Family Law, we have extensive experience negotiating and advocating for spousal support at the end of a marriage or marriage-like relationship. We aim to ensure fair spousal support while minimizing conflict between spouses whenever possible.
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.
Under the Canada Divorce Act a spouse includes both married and formerly married persons. Under the BC Family Law Act, you are a spouse if you are married, or if you lived with another person in a continuous marriage-like relationship for at least two years. A spousal relationship begins on the date on which spouses began to live together in a marriage-like relationship. A spouse also includes people in a marriage-like relationship who have cohabited for less than two years if the parties have a child together. Spouses may be separated while still living together.
There should be shared intention or interest in being in a “marriage like relationship”: J.M. v. S.T., 2022 BCSC 1210 at paragraph 122. If the existence of a spousal relationship is disputed, determining whether a marriage-like relationship exists can difficult. A contextual analysis of the intentions of the parties, as well as objective evidence, may be necessary. A recent review of the relevant case law regarding the meaning of “marriage-like” is provided in the 2019 BC Supreme Court decision in Mother 1 v. Solus Trust Company at paragraphs 132 to 148.
Once the court determines that someone applying for spousal support has standing under the Divorce Act or the Family Law Act, the court must next assess whether a spouse is in fact entitled to receive spousal support. Without entitlement, no spousal support will be awarded.
A spousal relationship alone does not automatically lead to entitlement, even after a long relationship. A difference in income alone is not enough to trigger a spousal support obligation after separation, either.
Entitlement to spousal support is based on:
In practice, entitlement is usually based on a mixture of both compensation and need, especially in long spousal relationships. Once entitlement is established, the same factors that the court looks at to determine entitlement will dictate both the amount and length, or duration of support. The length of the spousal relationship, the roles performed by each spouse during the relationship, the living conditions of the spouses following separation, and their relative economic strengths and needs following separation, will all influence the amount and duration of support. No single factor will prevail to the exclusion of the others.
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 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.
The Spousal Support Advisory Guidelines (the “SSAG”) were completed in 2008 and use a mathematical formula to determine spousal support based on the parties’ incomes, number of children, relationship length, and special and extraordinary expenses. The SSAG have become a useful tool for the Courts in British Columbia, and judges routinely refer to and apply them, in both interim orders and final orders made after trial. The SSAGs provide two distinct formulas for calculating spousal support:
To determine the amount of support under the Without Child Formula, determine the gross income difference between the parties. Then, multiply the length of the marriage by 1.5-2 percent per year to determine the applicable percentage. Apply the applicable percentage to the income difference.
The length of time that spousal support will last ranges from .5 to 1 year for each year of marriage. However, support will be indefinite (duration not specified) if the marriage is 20 years or longer in duration or, if the marriage has lasted five years or longer, when years of marriage and age of the support recipient (at separation) added together total 65 or more (this is known as the “Rule of 65”).
The following basic With Child formula applies where the higher income spouse is paying both child and spousal support to the lower income spouse who has primary care of the child(ren).
At the low range a spouse with primary care of two or more children should receive at least 50 percent of the family net disposable income. At the high range the primary parent will receive 56 to 58 percent where there are at least two children.
The Basic With Child Support Formula for Duration
At the Upper End of the Range: the longer of
At the Lower End of the Range: the longer of
The With Child calculations are complex, requiring special software programs. Seek legal advice if you are not sure whether you or your spouse are entitled to spousal support.
The starting point for calculating child support when spouses both have at least 40% of parenting time is to apply the Federal Child Support Guidelines table amount of child support for each parent. The net difference should be paid by the parent with the higher income.
Spousal support is taxed as income for the spouse that receives it and is a deduction for the spouse who pays it. If you pay spousal support, you can apply for a tax remittance to apply for each of your paycheques to reflect the amount of spousal support you pay. Alternatively, you can apply for a tax refund when you submit your annual income tax return.
If a spouse is entitled to spousal support, then their decision to leave the relationship will not affect whether they will receive spousal support.
If you (or your former spouse) enter a new marriage or marriage-like relationship the obligation to pay spousal support may be impacted. While spousal support may continue, the amount of support may be reduced. In some cases, the new relationship may result in termination of support altogether.
Ideally, you will be able to negotiate a spousal support family law agreement with your spouse. Your family lawyer will help you through this process, which may include mediation, collaborative law, four-way meetings between both spouses and their lawyers, or mediation/arbitration. You can apply to court for a spousal support order if a negotiated solution is not possible.
Spousal support court applications for married spouses can be pursued under both the Divorce Act and the Family Law Act. Unmarried spouses must apply under the Family Law Act. Remember to confirm limitation periods for applying to court for spousal support: an unmarried spouse must bring claims for spousal support within two years of the date of separation. Married spouses must bring claims for spousal support within two years of the date of the divorce or declaration of nullity. These time limits are suspended during any period in which the parties are engaged in family dispute resolution with a family dispute resolution professional, or a prescribed process.
Under both the Divorce Act and the Family Law Act, when a court is considering an application for both spousal support and child support, the court must give priority to child support (Divorce Act s. 15.3(1); Family Law Act s. 173).
Once you have a family law agreement or court order for spousal support, you will be able to enforce payment of spousal support by applying to court. The court has power under section 230 of the Family Law Act to enforce spousal support orders and agreements by requiring a person in breach of an agreement to 1) provide security for future compliance; 2) pay expenses caused by the breach; 3) pay up to $5,000 to the other party, or to a spouse who was affected by the breach, or 4) pay up to a $5,000 fine. The court also has “extraordinary enforcement powers” under FLA s. 231 to imprison the person in breach for up to 30 days.
Additional enforcement for agreements about spousal support is available through the Family Maintenance and Enforcement Program (“FMEP”). The FMEP provides a free enforcement service and has power to garnish wages from the payor of support and can also seize passports and driver’s licenses to encourage payment.
If past due spousal support has accumulated because your spouse is unwilling to pay, you will need an order for retroactive spousal support. When assessing a claim for retroactive spousal support, the court will weigh the following four factors set out in the Supreme Court of Canada in the 2011 Kerr v. Baranow, 2011 SCC 10:
The court will usually not order retroactive spousal support beyond three years before the time that formal notice was given to the payor spouse. The court looks at delay in seeking retroactive spousal support more critically than in child support cases. In Kerr v. Baranow, the court stated that “there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.”
The test to change an order for spousal support will depend on whether the original order for spousal support was made under the Divorce Act or the Family Law Act. The Family Law Act uses the terms “change, suspend or terminate”. The Divorce Act uses the term “variation”.
If the spousal support order was made under the Divorce Act, section 17 of that act requires an applicant to show “a change in the condition, means, needs or other circumstances” of either spouse has occurred since the last spousal support order was made. This is known as a “material change in circumstances.” If there has been a “material change” then the court can review the original spousal support order to determine whether it would be appropriate to vary the existing spousal support order.
Spousal support orders made on an interim basis (before trial) can be varied under the Divorce Act if there is a change of circumstances that would seriously prejudice one of the parties if they were forced to wait until trial.
A variation of a previous spousal support order must accomplish the following:
A material change in circumstances means a change that is substantial, unforeseen, and continuing. The change must be significant enough that the original spousal support order likely would have been different if the change had already occurred.
Examples of a material change in circumstances:
When reviewing a family law spousal support agreement that has been incorporated into an order, the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time: Dedes v. Dedes, 2015 BCCA 194 at paragraph 25. Therefore, as the BC Court of Appeal said in the 2018 decision Sandy v. Sandy at paragraph 71, “parties wishing to achieve finality should set out in an order or agreement the potential changes in circumstances they have considered in reaching their agreement, and clearly identify the changes they agree will, or will not, warrant reconsideration of the terms on which they have resolved their support obligations.” Mills Family Law can ensure that your spousal support agreement achieves the finality you require.
The Family Law Act provides for additional grounds for changing spousal support orders. If under section 167(2) at least one of the following elements exists, the court may change, suspend, or terminate a spousal support order:
If the court is satisfied that one of the three factors listed above applies, then the spousal support order may be changed with the following objectives in mind:
Unlike an application to vary or change a spousal support order, a review of spousal support does not require a material change in circumstances. The right to review a support order is created by a term of the agreement or order. A review application is treated as if it were the first application for spousal support. If the review is based on an agreement, the agreement itself is one of the factors considered by the court. Note that even if your family law agreement or order contains a date for review, you can still apply to vary spousal support before that date if there has been a material change in circumstances.
Spousal support can be paid all at once, rather than in periodic (usually monthly) payments. Courts rarely order lump sum spousal support, but this is often a term included in a separation agreement. The great benefit of lump sum spousal support is that it provides both spouses with certainly, both in terms of amount and duration. The payor of spousal support will often agree to exchange some or all of their interest in family property, such as the family home, in order to satisfy their spousal support obligation. Lump sum spousal support is not taxed as income in the hands of the recipient, nor can it be “written off” by the payor.
The court generally accepts that retirement at the age of 65 is a “material change in circumstances” that allows for a variation of a spousal support order. However, early retirement may not be considered a material change of circumstances, especially if a compensatory spousal support obligation still exists. The intention to retire at 65 is not necessarily a material change in circumstances if retirement is not certain: Carey v. Carey, 2021 BCSC 1537.
The Family Maintenance Enforcement Program (the “FMEP”) is a free service of the British Columbia Ministry of Attorney General that each year collects over $200 million in child and spousal support for over 37,000 BC families. The legislation that governs the FMEP is the Family Maintenance Enforcement Act (“FMEA”).
Filing a support order with the FMEP director is voluntary, except for interjurisdictional support orders which the court may file under the Interjurisdictional Support Orders Act (“ISOA”). Contact us.
