WESTSIDE FAMILY LAW - Basics of Spousal Support

BOOT CAMP BASICS About Spousal Support in B.C.

This article is written by BC family law lawyer, Anna L. Perry, and reproduction without her permission is strictly prohibited. This article is not legal advice.

Spousal support is critically important and often not discussed because of common misconceptions or a level of discomfort about the topic. You need to know the basic facts about spousal support when considering or negotiating a prenuptial, cohabitation or a separation agreement (or making a lawsuit claim for spousal support). You must seek advice of an experienced family law lawyer in your jurisdiction. Be aware that your jurisdiction may have time-limited rights to apply to court for an order for support and if that time limit is passed, you could be without a legal remedy. This fact underscores the need to seek legal advice sooner rather than later.

Support is not gender based: Women pay support too. You or your spouse may be ordered to pay spousal support ("support") depending only on the circumstances of your relationship, before and after your separation. A difference in income and an absence from the work force during the relationship, such as to perform child care and housework, are hallmarks of a spouse’s support entitlement but do not by themselves predetermine that support will be payable.
You may be liable to pay, or have a right to receive, support even if you did not have children during your relationship or if you did not stay home to raise the children.
Support may be paid for a limited term, long-term or in a lump sum. Lump sum spousal support is pro-rated for the facts that: (a) it is not usually included as taxable income of the recipient, and (b) the lump sum can be invested to earn income, and (c) the entire sum is paid up front, without the risk of the payor’s future non-payment due to death or disability.
A person's right to receive support is legislated in both the B.C. Family Relations Act and the federal Divorce Act. The Divorce Act applies only to married spouses and contains no specified time limit within which a person has to make a claim for support.The Family Relations Act does contain a specified time-limit within which a separated spouse must commence their support claim or lose their rights to do so but there are some (rarely applied) exceptions.
Both of the B.C. Family Relations Act and the federal Divorce Act list specific factors and criteria (some of of which are listed below) that a court (judge or master in BC) must take into consideration when you ask the court to make an Order for support. A failure by the court to apply the legislated factors and criteria may result in the Court of Appeal over-turning the judge’s or master’s decision.
Neither the B.C. Family Relations Act nor the federal Divorce Act provide a mandate or guarantee that you will either receive or pay support to or from your spouse. Both also mandate a recipient spouse’s duty to be self-sufficient and self-supporting, to the extent possible in the absence of their having recent work experience, schooling, training, or if she or he has a medical or other disability that impacts employment income. The reason for a spouse’s non-employment or under-employment (and need for support) need not be directly connected with the relationship or marriage.
The recipient spouse must establish his or her “right” or claim to support either by support agreement (in a separation agreement) or by a court order. If by court order, then he or she will have to “win” either or both of an interim hearing and a Trial at which the presiding judge decides that one spouse has the means to pay support and the other has the financial need or that there is a compensatory or other judicial reason to award support. Financial need is not the only basis on which support is awarded.
At trial, a person's right to receive (or duty to pay) support is determined by the presiding judge. You and your lawyer should be able to predetermine the outcome with reasonable certainty using similar fact decisions from other reported trial decisions, including previous decisions of the judge assigned to your trial.
It is possible (uniquely so in B.C. as compared to other jurisdictions) to predict with reasonable certainty the approximate range of support amount and duration of support (ranging from a few months to years to an indefinite time period) using prior similar fact case decisions and by using the industry standard support calculations software that is widely accepted by judges and masters in B.C.
A court order for support creates legal rights and remedies in favour of the recipient spouse. If the Order is ignored by the payor spouse, he or she may face legal consequences from their contempt of court and support arrears.
Each province in Canada has a support enforcement program (such as BC’s Family Maintenance Enforcement Program or “FMEP”) operated by the provincial government that requires the payor or recipient to enroll in the program, by filing a court-certified copy of the court Order or the court-filed Agreement. The payor is then required to make payments through the support enforcement program, or risk serious repercussions that may include one or more of the following: garnishment of pay cheques, attachment of wages and tax return refunds, suspension of driver’s licence and seizure of passport.
A recipient spouse is obliged by legislation (in both the B.C. Family Relations Act and the federal Divorce Act) to make reasonable efforts to become self-supporting within a reasonable period of time after divorce, dissolution of marriage or legal separation. The consequences of malingering are much less severe than the legal consequences of a payor’s non-payment of support. Generally, the payor makes repeated applications to court to reduce or cancel the support Order terms and each application will meet with varied degrees of success, depending on all facts in evidence. The court may make a “step-down” order by which the support payments decrease over time without need for the payor to return to court repeatedly. This requires that the recipient be self-sufficient within a forseeable time frame with a reasonable degree of certainty that he or she will achieve a livable level of income from employment or other sources such as an inheritance or via remarriage to an employed spouse who supports him or her.
A spouse may agree to waive or release his or her claims for support and if the waiver and release is contained in a court Order, then there is reduced risk of either spouse successfully applying to court to re-open the court Order and obtain support at a later date. However, it is always possible to successfully apply to court to re-open the court Order in the case of married spouses, proceeding under the federal Divorce Act, which has no specified time limits for support applications.
NOTE: You can contract out of spousal support but you cannot “bargain away” or waive and release your child support obligations because child support is the right of the child, and the law in BC protects child’s rights vigorously.
Support is taxable income in the hands of the recipient and a tax deduction to the payor spouse. The recipient must pre-determine his or her tax liability associated with the support payments each year and is advised to set aside funds to pay the income taxes due each year to avoid costly income tax debt with penalties plus interest.
Lawyers, arbitrators, judges and masters are required to consider the following factors and criteria when deciding whether a person is to receive (or pay) support and if so, at what amount and for how long a time:

Age, health and education of both persons (as directly relevant to employment)
Income and employment of both persons (and of new spouses or partners)
If not working: skills and employability
Assets or property received or owned of both persons (before and during the relationship) and the potential income that the assets or property do or may generate, such as rental revenue
Alternative sources of income including inheritance, windfall such as a lottery win, or from a new spouse that is supporting the recipient
Children's ages and special needs and the need to reduce employment to care for the children
Length of the marriage or cohabitation
Emotional and physical fallout from the separation that impedes employment (that must be medically substantiated by expert’s report)
Marital or cohabitation standard of living or lifestyle (although the courts are pragmatic and accept that most people experience a reduction in standard of living as a result of separation and the resulting division of their family income and assets

Full and frank disclosure of financial records and documents is essential to determine the issue of support amount, duration and entitlement. “Show me the money” is the catch phrase for financial disclosure: you should not bargain in bad faith and must avoid undue pressure or duress. Either of these could result in your agreement or court order being set aside by a court at a later date.

This article is not legal or financial advice. You should contact a lawyer in your jurisdiction to discuss your circumstances and the applicable law and potential outcome. If you don’t do so, you risk loss of your legal rights.