Canadian spousal support is a complex area of family law. Beyond the primary question of entitlement to spousal support, many factors are relevant when calculating the amount and duration of spousal support. Here are some of the basics of what you need to know about spousal support payments.
1. Both married and common law spouses may have a right to spousal support
Applications for common law spousal support must be brought under BC’s Family Law Act. Married spouses can apply for spousal support under either the federal Divorce Act or the BC Family Law Act.
2. Not everyone is entitled to spousal support
Spousal support is not an automatic right, even if the spouses have vastly different incomes. Entitlement to spousal support depends on factors like the length of the marriage, the financial means of the spouses, and their roles during the relationship.
3. Entitlement to spousal support may be contractual, compensatory, and/or non-compensatory
Spouses who entered into a cohabitation agreement or marriage contract may have a contractual right to spousal support.
Where there is no contract, there may be entitlement on one or both of these bases:
(i) non-compensatory spousal support, which is based on financial need of the recipient spouse and the means of the payor spouse; and/or
(ii) compensatory spousal support, which is based on economic disadvantage or hardship brought about because of the marriage or its breakdown.
Staying home to raise children and sacrifices in a spouse’s career or ability to earn income during the marriage are the types of disadvantages that compensatory spousal support is intended to address.
4. Child support and spousal support are calculated differently
Depending on your circumstances, youmay receive (or be required to pay) both child support and spousal support. However, the principles underpinning child and spousal support and the formulas for calculating them are quite different.
Child support is calculated using the mandatory Federal Child Support Guidelines and the BC child support tables.
In contrast, the formulas in the Spousal Support Advisory Guidelines (SSAG) are not binding and will produce a range of outcomes for the amount and duration of spousal support. Factors unique to your marriage and personal circumstances will determine whether your spousal support claim falls at the upper or lower end of the range.
5. Proper financial disclosure is essential to spousal support calculations
Spousal support payments are calculated on the spouses’ income from all sources, using the “without child support formula” or the “with child support formula” in the SSAG.
To ensure spousal support calculations are fair and accurate, you and your spouse must exchange financial documents such as personal income tax returns and pay stubs. If a spouse is self-employed, the beneficiary of income from a trust, or has corporate income, further documentation will be required. It can be difficult to know what information is necessary and how to obtain it from your spouse. If you have questions about financial disclosure, you should speak with an experienced spousal support lawyer.
