What is Spousal Support?
Spousal support is a monetary sum paid by one spouse to the other after the separation of the parties. This is not automatic. The spouse seeking spousal support must demonstrate entitlement.
The support provisions under the Canadian Divorce Act and the British Columbia Family Law Act are intended to deal with the economic consequences of the breakdown of a marriage or marriage-like relationship.
The Divorce Act applies only to married persons. The Family Law Act applies to both married and unmarried persons.
Who is Eligible to Claim Support Support?
In British Columbia, any of the following parties may make a claim for spousal support:
- persons who were married to each other;
- persons who lived in a marriage-like relationship for a continuous period of at least 2 years; or
- persons who lived in a marriage-like relationship for less than 2 years, but have a child together.
Objectives of Spousal Support
Section 15.2(6) of the Divorce Act and section 161 of the Family Law Act both set out the following four similar objectives of spousal support:
- to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- to promote the economic self-sufficiency of each spouse within a reasonable period of time.
Grounds for Spousal Support
Canadian courts have recognized that there are three different types of entitlement to spousal support:
- Compensatory spousal support;
- Non-compensatory spousal support; and
- Contractual spousal support.
1. Compensatory Spousal Support
Compensatory spousal support seeks to recognize the roles that each party played during the relationship and to address the economic advantages that resulted.
It is premised on the idea that when a marriage ends, spouses are entitled to compensation for the contributions made to the marriage and for losses suffered due to the marriage.
The Supreme Court of Canada in Bracklow v. Bracklow 1999 1 SCR explained that the compensatory basis for spousal support recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success.
In Moge v. Moge 1992 3 SCR, the Supreme Court of Canada recognized that compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. For example, where one spouse helps the other to further their education or training.
2. Non-Compensatory Spousal Support
Non-compensatory spousal support can be thought of as needs-based or dependency-based support.
It reflects the idea that spouses are normally economically dependent on one another and the breakdown of the relationship may adversely impact the means and needs of the spouses. It is meant to help the recipient spouse meet their basic needs but also to cover their decreased standard of living that may result as a consequence of the breakdown of the relationship.
The factors considered include the length of the relationship, the change in the standard of living post-separation as compared to during the relationship, and any economic hardship as a result of the breakdown of the relationship.
3. Contractual Spousal Support
Contractual spousal support reflects any formal or informal agreements that the parties entered into with respect to spousal support.
It is becoming increasingly common for spouses to enter into cohabitation or marriage agreements. Parties are also choosing to enter into separation agreements after their breakdown of the relationship in an effort to avoid costly court proceedings.
These kinds of agreements allow the parties to decide and negotiate what their rights and responsibilities would look like at separation. The agreements often deal with other issues such as the division of assets and debts, child support, parenting arrangements and responsibilities, as well as other relevant legal issues.
Limitation Period
Under the Divorce Act, there is no limitation period for bringing a claim for spousal support. Therefore, if you were married you can bring a claim for spousal support at any time under the Divorce Act. That being said, it is generally advisable to bring a claim as soon as possible.
Under section 198 of the Family Law Act, spouses who were living in a marriage-like relationship have to bring a claim within 2 years from the date of separation.
Contact a Vancouver Family Law Lawyer
If you have any questions about spousal support or about family law in British Columbia, please feel free to contact us or book a consultation.
