The information below on BC Spousal Support and the Spousal Support Advisory Guidelines is general in nature and not intended to be a substitute for legal advice on the emotional issue of BC spousal support. It is not a simple matter to determine whether an individual is or will be liable for BC spousal support and there are many exceptions to the Spousal Support Advisory Guidelines. If you are concerned that you may be liable for support or wonder whether you are able to claim BC spousal support under the Spousal Support Advisory Guidelines following a separation, please contact our offices.
The White Paper on Family Relations Act Reform 2010 contains proposals for change in our Provincial support laws as follows:
1. Align provincial spousal support factors and objectives more closely with the Divorce Act.
2. Explicitly permit periodic reviews. Lorne MacLean argued this issue in Leskun v Leskun in the Supreme Court of Canada.
3. Permit variation applications in light of the spousal support objectives and factors where there has been a change in circumstances, new evidence or a failure to make full and frank disclosure.
4. Limit consideration of a spouse’s alleged misconduct to that which “arbitrarily or unreasonably” affects the need for support or the ability to provide it.
5. Provide that spousal support obligations continue after the death of the paying spouse unless otherwise agreed or ordered.
6. Clarify that spousal support should be awarded only where spousal support objectives have not already been met through property division.
7. Spousal Support Advisory Guidelines will not be referred to in the Act and will remain advisory.
8. Eliminate parental support obligations.
These changes can impact your rights and obligations regarding spousal support. Contact us so we can help explain your rights and obligations under these proposed changes which may take effect as early as 2011.
Spousal support provisions apply to both opposite-sex and same-sex spouses subsequent to the breakdown of either a marriage or a common-law relationship.
How much post-divorce support should you expect to pay? The Canadian Spousal Support Advisory Guidelines, while not legislated or mandatory, provide a formula for spousal support you can use as a benchmark.
The formula for cases where no child support is involved suggests an annual payment of 1.5% to 2% of the difference between the spouses’ gross incomes for each year of marriage or cohabitation, up to a maximum of 50%. Spousal support is to be paid for a duration of six months to a year for each year of marriage, and is indefinite for marriages of 20 years or longer. Say you were married 10 years, your gross income is $300,000 and your ex-spouse’s is $60,000. To determine your minimum support payment, multiply your income difference ($240,000) by 1.5, then multiply again by 10 (number of years of marriage). The grand total: $36,000 per year. Given the duration of your marriage, you’d be expected to pay this amount for at least five years.
With child support, the formula is based on the combined individual net disposable income (INDI) of both spouses. Add together your and your ex-spouse’s INDIs, then multiply by 40% to 46% of the combined INDI: That’s the amount of support likely to be awarded to the lower-income spouse.
Lorne MacLean had a recent success that provides a great example of how the guidelines work with children. Click here to read the Article on this Success Story.
For married spouses, a British Columbia support order is available under the Family Relations Act or the Divorce Act. Common-law spouses, however, can only apply under the Family Relations Act. In practice, the courts use the same principles when making an order under either Act, but there are some important differences.
Individuals in common-law relationships have no entitlement to spousal support until they have lived in a “marriage-like relationship” for a period of two years or more. A common-law spouse must apply for spousal support no later than one year after the parties stop being in a marriage-like relationship.
For married spouses, there is no requirement that the parties be married for a particular length of time. However, under the Family Relations Act, a married spouse must bring an application for support no later than two years after divorce. In the Divorce Act, there is no time limit for making an application for spousal support.
Entitlement to Support
There is no presumption of mutual support upon the breakdown of a common-law relationship or marriage. According to the Supreme Court of Canada in Bracklow v. Bracklow [1999] 1 S.C.R. 420, there are three bases for entitlement to spousal support:
1. To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
2. To fulfill a contractual agreement, express or implied, that the parties were responsible for each other’s support; or
3. On a non-compensatory basis, to assist a spouse in need.
A spouse may be entitled to spousal support on any or all of these bases.
Generally, the longer the marriage or common-law relationship the greater the disparity in the economic circumstances of the spouses, the more likely it is that spousal support will be awarded. Support orders are more common following relationships in which the parties assumed “traditional” roles. However, even where the parties have maintained financial independence, needs-based support may be ordered to assist a disabled spouse.
Amount and Duration of Support
Spousal support is awarded on an interim, temporary or permanent basis. Support may be ordered in the form of a lump sum payment, although most often it is a monthly amount.
There are now new Spousal Support Advisory Guideline setting out the amount or duration of support. The Courts determine each case on its own particular facts and with reference to the following objectives of spousal support set out in the Divorce Act:
1. To recognize the economic advantages or disadvantages to the spouses arising from the marriage breakdown;
2. To apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses;
3. To relieve any economic hardship of the spouses arising from breakdown of the marriage; and
4. In so far as is practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
In light of these objectives, the Court will consider the condition, means, needs and other circumstances of the spouses in arriving at a reasonable support award. Relevant facts include:
1. The length of time that the spouses lived together;
2. The functions performed by each spouse when they lived together and the effect of this on earning capacity;
3. Any other source of support for the spouse making the application;
4. Any obligation of the spouse from whom support is sought to support another person.
5. Any order, agreement or arrangement relating to the support of either spouse;
6. The capacity and reasonable prospects of a spouse obtaining retraining; and
7. The desirability of the applicant spouse having special assistance to achieve financial independence from the supporting spouse.
Spousal misconduct is not relevant to the issue of support with some confusing exceptions as a result of the Supreme Court of Canada decision inLeskun v. Leskun although it was argued by Lorne MacLean on November 18, 2005 that conduct was irrelevant and there needed to be greater scrutiny on the duty of self sufficiency.
It is common for the Courts to order interim or temporary support to ameliorate the effects of the marriage breakdown and to assist one spouse to become self-sufficient. Temporary support may be ordered, for example, so that a spouse can retrain, upgrade career skills or adapt to a new situation.
Permanent support orders are made in cases where it is unreasonable to expect a spouse to achieve financial independence. For example, in a long marriage where one spouse remained at home and out of the work force for many years, a time limited support order may be inappropriate. Similarly, permanent needs-based support may be ordered where, subsequent to a long marriage, a spouse is unable to become financially independent because of disability.
In setting the amount of support, the Courts seek to provide a reasonable standard of living (if means are available), bearing in mind the marital standard of living. Subsequent to long relationships, there may be a greater expectation that the standard of living of the spouses should be equalized.
BC SPOUSAL SUPPORT AND BC SPOUSAL MAINTENANCE – PAYMENT CALCULATOR
Except as it concerns interim orders, the amount and duration of spousal support is generally decided after division of the marital assets. In some cases, the division of assets may fulfill the four objectives of spousal support (stated above) and there may be no need for further support.
Varying a Support Order
Both the Divorce Act and the Family Relations Act require that there be a material change one party’s needs, means, financial circumstance, or ability to pay spousal support before the Court can consider an application to vary a support order.
Tax Implications
Spousal support, unlike child support, may be tax deductible to the paying spouse and taxable in the hands of the receiving spouse but only if paid pursuant to a Court Order or a written agreement signed by both spouses. Call us immediately to assist you with obtaining documentation that will enable you to obtain tax deductibility.
