How Does Spousal Support Work in BC?
Duty to Provide Support
Under S. 160 of the Family Law Act in BC, spouses have a duty to provide support to the other spouse where that other spouse has been deemed entitled to receive spousal support.
S. 3 of the Family Law Act clarifies that:
(1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
(2) A spouse includes a former spouse.
Entitlement of Spousal Support
Spousal support entitlement is dependent on the circumstances of both spouses, as the system is meant to ensure that a few objectives are achieved upon the breakdown of a relationship. S. 161 of the Family Law Act in BC states that:
In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;
(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
Calculation of Spousal Support
If a duty to provide spousal support exists, the amount and duration of spousal support depends on the factors set out in S. 162 of the Family Law Act in BC:
The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:
(a) the length of time the spouses lived together;
(b) the functions performed by each spouse during the period they lived together;
(c) an agreement between the spouses, or an order, relating to the support of either spouse.
Through consideration of these factors, the judge will decide that either:
● Spousal support should be paid in one lump sum,
● Spousal support should be paid in regular payments over a certain number of months or years, or
● No spousal support is needed.
If one of the first two options are selected, the Spousal Support Advisory Guidelines are a tool often used to determine an appropriate amount of spousal support based on individual circumstances stemming from the breakdown of the relationship. Although they are not legally binding and are subject to judicial discretion, they typically assist the judge in establishing an appropriate range of values to draw upon when deciding how much support is owed. They are also often used as guidance when two parties are negotiating spousal support agreements with each other.
Pathways to Spousal Support
In BC, spousal support arises from one of two potential avenues:
A spousal support application heard by a judge; or
An agreement made between both parties.
Applications of Spousal Support
S. 165 of the Family Law Act in BC states that:
(1) On application, the court may order a spouse to pay to a designated person the amount the court considers appropriate as spousal support after taking into consideration section 160 [duty to provide support for entitled spouse].
(2) An application under subsection (1) may be made
(a) by either spouse or both,
(b) on behalf of a spouse, by a designated agency under the Adult Guardianship Act after an investigation conducted under Part 3 of that Act, or
(c) if the right to apply for an order under this section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, by the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.
(3) The court may not make an order respecting spousal support if the spouses have an agreement described in section 164 (1) [setting aside agreements respecting spousal support], unless all or part of the agreement is set aside under that section.
An application for spousal support made under the Family Law Act in BC must be made within the time limitations set out in S. 198:
(2) A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,
(a) in the case of spouses who were married, the date
(i) a judgment granting a divorce of the spouses is made, or
(ii) an order is made declaring the marriage of the spouses to be a nullity, or
(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
Spousal Support in Agreements
Parties also have the option to negotiate and create a spousal support agreement without any need to attend court. S. 163 of the Family Law Act in BC sets out that:
(1) An agreement respecting spousal support may provide for the circumstances under which spousal support will change or end, including if a spouse lives with another person or enters a relationship with another spouse, but a condition of spousal support that the spouse abstain from sexual relations after separation is not binding.
(2) Despite section 160 [duty to provide support for entitled spouse], in making an agreement respecting spousal support, a spouse may agree to release the other spouse from liability for spousal support.
(3) A written agreement respecting spousal support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.
Setting Aside Spousal Support Agreements
S. 164 of the Family Law Act in BC establishes the rules for setting aside a spousal support agreement:
(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would under the common law cause all or part of a contract to be voidable.
An example of the circumstances referred to in subsection (d) might be if there were questions about the decision-making capacity of one of the parties when they entered into the agreement, or they entered it while under duress. Despite the language of S. 164(3) that seemingly limits the court’s ability to interfere with spousal support agreements, these agreements are still within the court’s reach when the surrounding context allows it to meet a certain standard. This standard is known as significant unfairness and is described in S. 164(5):
(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d) the degree to which the spouses relied on the terms of the agreement;
(e) the degree to which the agreement meets the objectives set out in section 161 [objectives of spousal support].
Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.
The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation.
