22/10/2019 0 Comments
Am I Entitled to BC Spousal Support?
Spousal support (also known as alimony or spousal maintenance) is money that is paid by one spouse to the other after separation.
Unlike child support, spousal support is not an automatic right – you must either come to an agreement with your ex that spousal support will be paid, or if an agreement is not possible, you must apply for spousal support by way of a court order. Let’s have a look at some of the issues with respect to eligibility, limitation periods, and entitlement to BC spousal support.
Who is eligible for BC spousal support?
Before considering entitlement to BC spousal support, you must determine if you are eligible for spousal support. You are eligible for spousal support in BC if:
• You were married;
• You lived in a marriage-like relationship (also known as a “common-law relationship”) with your partner for at least two years; or
• You lived in a marriage-like relationship for less than two years but have a child with your ex.
Are there time limits to apply for court-ordered spousal support?
There are two laws that apply to spousal support in BC: the Family Law Act applies to couples who were living together in a marriage-like relationship for two years or more or who had a child together, and to couples who are or were married; whereas the federal Divorce Act applies only to couples who are or were married. There are important limitation periods that must be met if applying to the court for a spousal support order, and the limitation period differs depending on whether you are applying under the Family Law Act or the Divorce Act. More particularly:
• If you were married and you apply for spousal support under BC’s Family Law Act, you must do so within two years after you get an order for divorce or annulment.
• If you were unmarried (i.e., common-law), and you are eligible to apply for spousal support, you must apply within two years of the date you separated.
• If you are or were married and apply for spousal support under the federal Divorce Act, there is no time limit (that being said, the court may dismiss a claim based on delay, so our BC family lawyers recommending pursuing spousal support as soon as possible).
How is entitlement to BC spousal support determined?
There are three grounds upon which an entitlement to spousal support may be determined:
1. Compensatory – to compensate a spouse for hardship or opportunities lost due to the marriage or the marriage breakdown (for example, if one spouse stayed at home to raise children during the marriage while the other spouse built a career outside of the home);
2. Contractual – based on a written or oral agreement with respect to spousal support (for example, a Marriage Contract or Separation Agreement); or
3. Non-compensatory or “needs based” – to help a spouse who is in financial need where the other spouse has the ability to pay.
In determining entitlement to spousal support, the parties to an agreement or the court must consider certain objectives. The objectives that apply to determining whether a spouse is entitled to spousal support are set out in s. 161 of BC’s Family Law Act, and they are the same as the objectives set out in s. 15.2(6) the federal Divorce Act. The objectives are:
• to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
• to apportion between the spouses any financial consequences arising from the care of their child (or children), beyond the duty to provide support for the child (or children);
• to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; and
• as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
It is important to note that misconduct of either spouse in relation to the marriage (such as adultery or abuse) does not impact entitlement to spousal support. However, in BC the court may consider conduct that arbitrarily or unreasonably causes, prolongs, or aggravates the need for spousal support, or that affects the ability to provide spousal support.
How much spousal support will I get and for how long will it be paid?
Once it is established that a spouse is entitled to spousal support, the next step is to determine the quantum of spousal support and for how long it will be paid (in other words, amount and duration). Check back for our BC family lawyers’ follow-up discussion on the calculation of spousal support, including the Spousal Support Advisory Guidelines and factors to be considered in the determination of amount and duration with respect to BC spousal support. It may also interest you to read our BC family lawyers’ related discussion of whether BC spousal support ends when a person remarries.
Need more information or advice? Contact our BC spousal support lawyers for help
The issue of entitlement to spousal support in BC can be confusing. Entitlement to BC spousal support depends on a consideration of your relationship and your unique circumstances. An experienced BC family lawyer can clarify whether you or your ex is entitled to receive spousal support. If you have questions about how the law applies to you, need legal advice with respect to the enforceability of a Marriage Contract or the preparation of a Separation Agreement pertaining to spousal support, or want to bring legal proceedings to get a court order for BC spousal support, contact the Bronson Jones & Company LLP team of BC family lawyers today at 1-855-852-5100 to schedule a free initial consultation.