The federal Divorce Act sets out the rules for spousal support for married couples who get divorced. The Divorce Act applies across Canada (whereas each province has its own laws for dealing with couples in common-law relationships and for married couples who separate but who are not divorced).
Under the Divorce Act spousal support is usually paid when there is a significant difference between the spouses’ incomes following separation. The spouse with the lower income is not always entitled to support, however, if the difference in their income can’t be traced to something that happened during the relationship or that spouse is independently wealthy or has a lot of assets.
A common-law partner may be eligible for spousal support in most provinces and the territories. It usually depends on how long the couple lived together. For example, in BC a common-law couple must live together for two years before either is eligible for spousal support from the other.
Factors a Divorce Court Considers
Many factors must be considered in deciding if a spouse is entitled to support, including:
– the financial means and needs of both spouses;
– the length of the marriage;
– the roles of each spouse during their marriage;
– how those roles and the breakdown of the marriage impacts their current financial situations;
– the care of the children;
– the objective of encouraging a spouse who receives support to become self-sufficient; and
– any orders, agreements or arrangements already in place dealing with spousal support.
The law also takes into account whether spousal support meets the following objectives:
– compensating the lower income spouse for sacrificing income-earning potential during the marriage, eg: by staying home to to manage the household and raise the children;
– to compensate the spouse with the lower income for ongoing care of children; or
– to help a spouse who is in financial need if the other spouse has the ability to pay.
A spouse who is entitled to support payments must try to become self-sufficient, where that is a reasonable goal.
Spousal Misconduct
Canada has ‘no-fault’ divorce law. This means that the reasons why the marriage ended do not affect spousal support obligations.
Payment of both Child and Spousal Support
Both parents have an obligation to support their children. If either spouse pays child support – which falls under provincial laws – then another consideration is whether a requirement to pay spousal support would affect child support payments. The Divorce Act clearly states that a judge must give priority to child support when a person applies for both child and spousal support.
