Spousal support can be difficult to work out.
It often requires smart design and strong advocacy.
Spouses often have their own philosophies about continuations to the family and post-separation responsibilities to each other. Spousal support can be complicated and difficult to discuss.
Although it’s called something different, the legal principles of spousal support apply to both married and unmarried spouses. Financial support of a spouse after separation is called spousal support under the Divorce Act and partner support under the Family Law Act. Unmarried partners need to be adult interdependent partners under the Adult Interdependent Relationships Act, in order to claim partner support. To keep things simple on this page, we will refer to these terms collectively as spousal support.
The law of spousal support sets out a philosophy and framework which applies to families.
The theory behind spousal support is that marriage is a partnership in which each spouse is an equal contributor but the form of this contribution may vary. For example, one party may remain in the home to contribute by raising the children and running the household, while the other may financially support the family.
There are two parts:
- Entitlement; and
- Payment specifics.
1. To have a claim to spousal support, you must meet the entitlement threshold.
There are two primary categories of entitlement:
- Compensatory support; and
- Non-compensatory (needs-based) support.
When a spouse has given up their career advancement or income-generating ability for the sake of the family or the other spouse, they receive compensatory support. Examples of compensatory support entitlement include stay-at-home parents or spouses whose career came second because they moved to support the other spouse’s career.
Where a spouse is unable to support themselves regardless of their contribution to the family or other spouse, they receive non-compensatory support. Examples of compensatory support entitlement include a spouse who is too sick to work or a spouse who cannot return to the workforce because of age or other valid reason.
2. Spousal support must meet certain objectives under the law.
The Divorce Act sets out these four objectives, which are similar under the Family Law Act:
- To relieve any economic hardship arising from the marriage or its breakdown;
- Take into account the economic advantages or disadvantages to each spouse resulting from the marriage or its breakdown;
- Apportion between the spouses the financial consequences arising from the care of the children; and
- Promote the economic self-sufficiency of the spouses as far as is possible within a reasonable period of time
The length of time the spouses lived together and the functions they performed in the marriage are some of the factors the Court takes into account in determining a spouse’s entitlement to support. Additionally, the Court will not take into account any misconduct by a spouse in determining the entitlement to support.
If a spouse does not have entitlement to a support claim, a difference in income between spouses does not give rise to spousal support. If a spouse has an entitlement to a support claim, then the next question is how much should they receive and for how long. In Alberta, we refer to the Guidelines to help us determine the amount and duration of support.
Federal Spousal Support Guidelines
The government Federal Spousal Support Guidelines help families calculate spousal support. They provide a range for amount and duration, as well as discuss many of the complex considerations that may apply.
Lonny Balbi, QC, is a member of the Federal Advisory Working Group on Family Law Issues and consults with the Federal Government in the preparation of the Guidelines. He continues to work with Judges, lawyers, and members of the public to advance spousal support concepts in order to make their calculation simpler for everyone involved.
Splitting you and your spouse’s incomes between two homes and having two sets of expenses generally leads to a decline of your standard of living.
A spouse who was not working during the relationship may be at a considerable disadvantage to earn an income after separation. These disadvantages include not having training or qualifications, outdated skills, or other barriers to reentering the workforce, like age.
The payor usually pays spousal support monthly, but it can also be paid in a lump sum.
The recipient receives monthly spousal support or a specific or indefinite period of time. It can also be paid in a lump sum if you and your spouse agree or the circumstances are appropriate.
Monthly spousal support is tax-deductible for the payor spouse and taxable to the recipient spouse.
For the tax consequences to apply, the spousal support must be pursuant to a Court Order or Agreement that complies with the Income Tax Act. Lump-sum support is not tax-deductible nor taxable.
It is reviewable on a significant change in circumstances.
You and your spouse can structure an arrangement that works for you. This may include a review after a specific period of time or after a certain event happens. If you cannot agree on if or when to review then the Court will review it on a material change in circumstance.
On considering a review, the Court will consider your spousal support arrangement in your Separation Agreement. But it is not necessarily the only factor it will consider. The Court may also consider the circumstances under which the Agreement was signed, whether or not the Agreement complies with the objectives of the law and any other relevant factors.
The Alberta Maintenance Enforcement Program (MEP) may enforce spousal support.
Either spouse may register their Order or Agreement with MEP and have the payments enforced through the program. The payor spouse pays MEP and the program forwards the funds to the recipient spouse. This happens when you and your spouse register the Order.
MEP has discretion about how they enforce payments. This may include garnishing wages or federal return amounts, or suspending passport or driver’s license renewals.
The issue is complicated and you should discuss your situation with your lawyer.
Maintenance Enforcement Program
A provincial program that collects and enforces child, spousal and partner support
Spousal Support Advisory Guidelines
Guidelines to help make spousal support more predictable and consistent through suggested support ranges