Do I Really Have to Pay? Spousal Support in British Columbia

By Monica McParland
Categories: Blog, Family Law

Are you in the process of separating and wondering if you have to pay spousal support to your “Ex”? Spousal Support is certainly not automatic but it may be awarded in some cases.

What is Spousal Support?

Spousal support is money paid by one spouse to the other when a couple separates at the end of a relationship. Spousal support isn’t paid simply because a couple was in a relationship. The party seeking support must prove that he or she is entitled to receive it. Spousal Support can be paid in a lump sum, or periodically. If the payments are periodic, they are taxable in the hands of the recipient and tax deductible for the payor. Lump sum payments are tax neutral.

Who Can Apply?

In British Columbia a party can apply under the Divorce Act for spousal support if they were legally married, and lived in BC, and there is no time limit for when a spouse can bring the application. Under the Family Law Act, an application can be advanced by both married and unmarried spouses if the couple lived in a “marriage-like relationship” for at least two years, or if they lived together for less time but had a child together. The application must be filed within two years of date of the Divorce or within two years of separation for unmarried spouses.

Why Will Spousal Support be Awarded?

Spousal Support may be appropriate if the applicant can show entitlement. Entitlement to spousal support can be established in three different ways: compensatory, needs based or contractual. Compensatory support is when support is required to compensate a spouse for economic disadvantages as a result of the relationship. Needs based support is when the recipient can show he or she requires financial support to meet basic day to day living costs. Contractual support applies if the parties entered into an agreement about support prior to cohabitation.

The overriding objective of a spousal support order is to neutralize highly disparate standards of living that sometimes develop after spouses separate. A spousal support order will attempt to:

(a) recognize any economic advantages or disadvantages to the spouses arising from the relationship or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of their child beyond the duty to provide support for the child;

(c) relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; and

(d) as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

It is noteworthy that a support recipient is required to make his or her best efforts to become self-sufficient at some point. Unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition preventing his or her independence, the support payments will likely be ordered for a fixed duration. The precise length of time required for independence depends on the specific facts of the case.

How Much Spousal Support will be Ordered?

Assuming the threshold of entitlement has passed, the court will then determine the quantum (amount of support) and duration (length of time for which it should be paid). Unfortunately it is very difficult to predict how much spousal support will be paid in any given case. It is critical that each party prepare a sworn financial statement which sets out their income and assets, expenses and liabilities. Your lawyer will need time to analyze all the facts before being able to properly advise you and each spouse’s expenses and disposable income will be closely examined. It is well settled in law, however, that child support obligations take priority over spousal support obligations. Children come first. Sometimes there simply is not enough money to go around and it may be that both parties need to adjust their budgets to live more modestly.

If the parties are unable to reach a negotiated settlement the issue can be set down for trial and resolved by the Court. Usually the Court will only consider an application for Spousal Support after the parties have divided their family property and debts. In some circumstances, the objective of financial equalization can be addressed by dividing the family assets and spousal support may be found to be unnecessary.

Spousal support is a very grey area of the law, with few hard and fast rules. As a result, every order or agreement dealing with spousal support will be tailored to the particular circumstances of the parties. It is recommended that you consult a skilled Family Law lawyer for assistance in this complex area of the law.

Monica can be reached at mcparland@pushormitchell.com or (250)869-1120.