Under both the Divorce Act and The Family Maintenance Act one spouse may be required to pay support for their spouse. This support is sometimes referred to as spousal maintenance. The provisions of the Divorce Act apply to married couples, while the provisions of The Family Maintenance Act apply to married couples and couples who have lived together as spouses continuously for at least two years or are in a relationship of some permanence and are the parents of a child.
The court forms on this site dealing with spousal support and the legal information in this section apply only to spouses as defined under the Divorce Act and The Family Maintenance Act. Unmarried individuals who have lived together less than two years and have no children together may still have rights and obligations toward each other as a result of the relationship. However, the law that applies in these situations is far less clear and varies depending on the individual circumstances. These individuals may wish to seek the advice of a lawyer to help determine their rights and obligations.
Spouses may agree on the issue of spousal support or the court may be asked to decide the matter. A spouse can ask the court for a spousal support order alone or along with other orders dealing with matters such as custody, access, division of family property or divorce. If a court is considering an application for child support and an application for spousal support, the court will give priority to the child support application. This doesn’t mean that a court won’t order both child and spousal support, it simply means that the duty to pay child support comes first.
If you want to make a court application for spousal support or respond to one served on you and you are not represented by a lawyer you should look at the information in Unrepresented Litigants. If you want to use the Form Wizard to make or respond to a court application for spousal support create a free account to get started.
Factors the Court Considers
There is no automatic right to spousal support. The need for support and the ability to pay support are important factors. When deciding whether a spousal support order is appropriate, and if so, determining the amount, courts will consider factors such as…
- the financial means, needs and circumstances of each spouse
- the length of the spousal relationship
- the role each spouse had during the relationship and the effect on each spouse’s financial position
- any court order or agreement regarding child or spousal support
* If you already have an agreement for spousal support and are now seeking a court order for spousal support there are some important considerations. For more information see Changing Spousal Support.
Spousal support orders are generally intended to acknowledge the financial advantages and disadvantages arising from the relationship or its breakdown and relieve related economic hardship. Orders should also promote economic self-sufficiency in so far as it is practical. Sometimes, particularly when the relationship was relatively short and the parties’ incomes are roughly equal, these objectives will have been met through the division of family property without the need for a spousal support order.
Based on the factors discussed above, courts tend to look at spousal support orders in one of two ways. The first is on the basis of needs and means, where the court considers how much money the spouse asking for support needs and how much the other spouse can afford. The second is on the basis of compensation, where the court looks at whether the spouse asking for support should be compensated for career opportunities they may have lost due to household and child-rearing duties. The court may also consider the other spouse’s improved ability to earn an income because they had fewer household and child-related duties in the relationship.
Spousal misconduct is not a basis for spousal support and it will not be ordered or denied just because one spouse committed adultery or behaved in a cruel fashion. In some instances spousal misconduct could have financial consequences and could then be considered by the court. See Family Violence & Family Law for more information.
The court can order spousal support to be paid during the time between when a family law court case is first heard and the point at which the court makes its final decision. When an interim order for spousal support is requested, courts tend to focus on only the means and needs of the parties. Simply put this means that the courts generally only consider whether the party making the interim application has a need for support and whether the other party has the ability to pay it. However, when a court is asked to determine entitlement in the context of a final order for spousal support, the court must consider all the factors discussed earlier. Accordingly, the court may make a final order that is different than the interim order.
The Spousal Support Advisory Guidelines, which are discussed in the Amount & Duration of Spousal Support section, provide some modifications for interim orders. They can be a useful tool in determining a temporary amount without having the parties’ complete financial picture. Parties also do not need to prepare budgets or compare current expenses with future anticipated expenses.
Once the court has determined that a spouse is entitled to spousal support the court needs to decide the amount of support that will be paid and how long it will be paid for.