Spousal support is money that’s paid by one spouse to the other after separation. Usually, it’s paid under an agreement or court order.
You’re eligible to ask for spousal support if:
- you were married,
- you lived together in a marriage-like relationship (you might call it a common-law relationship) for at least two years, or
- you lived in a marriage-like relationship for less than two years and have a child with your ex-spouse.
Who can get spousal support?
You’re not automatically entitled to spousal support. You have to apply for it.
Here are some things the court will think about if you apply for spousal support:
- When you were married or living together, did one of you stay home to look after the children so the other person could work or study? Or did one of you work part-time so the other person could work or study?
- Was one person’s career more important than the other’s? Did one person have to focus more on the family and household while the other person focused on work? Did you move so the other person could get a better job or move up in their career?
- Will either of you find it hard to get a job because you’ve been out of the workforce to look after the children or the household?
- Were either of you financially dependent on the other throughout the relationship?
- Will your standard of living go down or your spouse’s go up significantly because your relationship has ended?
- Will your standard of living and the other person’s standard of living be very different?
- Will you need financial help for a while to become self-sufficient (provide everything you need for yourself without help)?
How much spousal support will you get?
If you’ll get spousal support, you have to negotiate (try to work out) how much you’ll get and for how long. (But if you and the other person can’t agree, the court has to decide.)
In BC, lawyers and courts use the Spousal Support Advisory Guidelines to figure out how much you’ll get and for how long. The guidelines suggest payments based on things like:
- how much you and your ex-spouse earn and what you could earn
- how long you were married
- how many children you have
- each of your roles in the marriage
How long will you get spousal support for?
Spousal support agreements or orders usually only last for a certain time. This time is usually based on how long you and your spouse were together.
Often, spousal support will last for between six months and one year for every year you were married or lived together. But if you were married for a long time and you’re older when you separate, spousal support might not have an end date. The end date would be decided later, maybe after you (usually the payor) retire.
For example, if you were married or lived together for 15 years, you might get spousal support for 7½ to 15 years.
How’s spousal support paid?
Usually spousal support is paid monthly. If the person getting spousal support agrees, it can be paid in a single payment, called a lump sum.
If it’s paid every month, your spousal support agreement will deal with:
- how long support lasts, and
- if and how the amount might change.
For example, it could say that:
- the amount of spousal support you get every month will stay the same until you come to the end of your support time,
- the amount of spousal support you get every month will change every year based on your incomes until you come to the end of your support time,
- the amount of support will decrease every year by a certain amount, or
- the amount of spousal support you get will be reviewed (you’ll try to negotiate a change or the judge or master will look at it again) on a certain date.
Ask for an extension before you get your final payment if:
- you need spousal support for longer than it says in your order or agreement (this is called extending your spousal support), and
- it won’t be reviewed automatically.
Time limits for applying for support
Two laws deal with spousal support:
- the Family Law Act (provincial law) is used for:
- people who were living together in a marriage-like relationship for two years or more or who had a child together, and
- people who are or were married; and
- the Divorce Act (federal law) is only used for people who are or were married.
- the Family Law Act (provincial law) is used for:
You have apply within two years after you get an order for a divorce or annulment if:
- you were married, and
- you’re applying for spousal support under the Family Law Act.
There’s no time limit under the Divorce Act.
You have to apply within two years after you separated if you:
- lived in a marriage-like relationship for at least two years (you might call this a common-law relationship), or
- lived with your spouse for less than two years but you had a child together.
You want to change an agreement
If you have a spousal support agreement, you can apply to court to set aside (cancel) part of it or replace it with a court order if one spouse:
- didn’t tell the whole truth about how much money they have or earn,
- took advantage of the other spouse in some way, or
- doesn’t understand the agreement.
You can also apply to change the agreement if you think it isn’t fair (the court calls this significantly unfair).
Here are some things the court will think about to decide if the agreement’s significantly unfair:
- Has anything changed for you or your spouse?
- When did you make the agreement?
- Did you and your spouse want this to be your final agreement? Or did one of you plan to use it for a certain time and then ask for changes?
- Does the agreement match what the Family Law Act says about spousal support?
It’s hard to get a court to set aside an agreement based on arguments that it’s significantly unfair.
You want to change an order
Do you have to pay tax on your spousal support payments?
Spousal support that’s paid periodically (for example, weekly or monthly) is tax deductible for the person who pays it. The person who gets the spousal support has to pay tax on it.
The CRA usually wants proof that the spousal support has been paid before it treats it like a tax deduction.
Arrears are support payments that haven’t been paid.