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What is spousal support?

Spousal support is money that is paid by one spouse to the other after a separation or divorce. It is meant to assist the disadvantaged spouse with the breakdown of the relationship. It can be paid by way of monthly payments or a lump sum payment. In the United States spousal support is called “alimony”.

How long does my spouse have to make a claim against me for spousal support?

If you were married, your spouse has two years from the date your divorce order was granted to make a claim for spousal support. If you were living in a marriage-like relationship (eg. common-law), your spouse will have two years after the date of separation.

In Jiang v. Baojian, 2015 BCSC 394, the court struck out a wife’s claim for spousal support because her claim was filed more than three years after the parties’ separation date.

Is my spouse entitled to spousal support?

Spousal support is governed by the Divorce Act and the Family Law Act.

There are three different bases for entitlement to spousal support:
Compensatory;
Non-compensatory; and
Contractual.

Compensatory support

Compensatory support may be payable when one spouse has sacrificed career opportunities to stay at home and assume greater household and child-rearing responsibilities, or where the income of the payor spouse has increased due to the role assumed by the other spouse.

Other economic factors when determining compensatory support include whether a spouse has missed promotions or lost seniority.

In situations where there is no loss of educational or employment opportunities, or no disparity in standards of living following the breakdown of a relationship, a spouse will not be entitled to compensatory support.

Non-compensatory support

Non-compensatory support may be payable alone on the basis of need. Although marriage alone does not entitle a spouse to support, in some circumstances, marriage may give rise to a support obligation based solely on financial need. Non-compensatory support is entrenched in the social obligation of marriage, in that the burden of a disadvantaged spouse rests with the other spouse and not the public. In a situation where a spouse is sick or disabled, support will be based on the need.

Many claims for spousal support can involve both compensatory and non-compensatory claims

Contractual support

Contractual support is payable when the parties enter into some sort of an agreement or contract. An example of this would be entering into a separation agreement. In situations where there is a validly executed agreement in place, the court will be inclined to hold it up.

 

Do I have to pay spousal support if my spouse was having an affair?

The short answer is yes! Discovering that your spouse was involved in an affair can be a nerve-racking experience. However, spousal misconduct is not a factor that the courts consider when making an award for spousal support.

Do I have to pay spousal support if my spouse has really wealthy parents?

The mere fact that your spouse comes from a wealthy family will not preclude their entitlement for spousal support. In Kelsch v. Chaput, 2012 BCCA 64, the court held that a spouse receiving spousal support should not be expected to turn to the family in substitution of a payor spouse’s support obligations.

Do I have to pay spousal support if my spouse remarries or finds a new partner?

The simple fact that your spouse has remarried or commenced a relationship with a new partner will not in itself disentitle them for a spousal support award.

However, in case of Redpath v. Redpath, 2008 BCSC 68, the plaintiff had applied to vary a spousal support order that was made at trial. The plaintiff asserted that spousal support be terminated or alternatively reduced from the date his ex-wife remarried. The court held that the income earning ability of the defendant coupled with the very comfortable means of her new husband were factors that were to be considered. Accordingly, the court retroactively terminated spousal support.

Can the amount payable for spousal support be changed?

Generally speaking, a spousal support order that has been made must not be varied unless there has been a material change in circumstances.

The test for material change was set out by Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64. It is a substantial change in circumstances, that if known at the time, would have likely resulted in a different order. What constitutes a material change may vary from one case to another. Some examples of this may be where a spouse has lost their job, suffered from an injury or illness which prevents them from working, or in some cases, where a spouse has retired.

Always remember that each case is unique. In order to determine whether or not you have to pay spousal support, book a free 30-minute consult with one of our lawyers to discuss your case.

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