Spousal Support

Under both the Divorce Act and The Family Maintenance Act, one spouse may be required to pay support to the other. This support is sometimes referred to as spousal maintenance. The provisions of the Divorce Act apply to married couples. The provisions of The Family Maintenance Act apply to:

• married couples
• couples who have lived together as spouses continuously for at least two years
• couples who are in a relationship of some permanence and are the parents of a child

For other types of relationships, spousal support is not available. However, other types of couples may still have rights and obligations toward each other as a result of the relationship. One partner could, for example, have guaranteed the other’s loan. 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 child support and family property. The court will give priority to a child support application if there is also an application for spousal support. This does not mean that a court will not order both child and spousal support, it simply means that the duty to pay child support comes first.

If you are not represented by a lawyer in relation to a spousal support matter, see 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.

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

There are some further factors for changing an existing spousal support order. For more information, see Changing Spousal Support.

The purpose of spousal support is to:

• recognize the financial advantages and disadvantages arising from the relationship or its breakdown
• relieve financial hardship arising from the breakdown of the relationship
• promote economic self-sufficiency within a reasonable period of time in so far as it is practical

Sometimes, these objectives will have been met through the division of family property without the need for a spousal support order. This is especially the case when the relationship is relatively short and the spouses’ incomes are similar.

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. A spouse can lose career opportunities due to taking care of children and the household instead. At the same time, the other spouse may have improved their ability to earn income because they did not do this. The court will look at whether the spouse asking for support should be compensated on this basis.

The court will not consider spousal misconduct when making an order for spousal support. 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 that spousal support be paid before its final decision on the family law court case. This is called an interim order. When a spouse requests an interim order for spousal support, courts tend to focus on only the means and needs of the parties. The court will typically not consider the factors mentioned above. Simply put, this means that the courts generally only consider whether the spouse requesting interim support has a need for support and whether the other spouse has the ability to pay it. As such, 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.