Spousal Support in Family Law
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.
Understanding Spousal Support in BC
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.
Who Qualifies as a Spouse?
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.
Entitlement to Spousal Support
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:
- 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);
- A contract, or consensual arrangement between spouses, i.e., in the form of a marriage (pre-nuptial) or cohabitation agreement.
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.