Spousal support is not always payable, and child support takes priority. Before determining the amount, you must first establish eligibility - which has several categories, each with its own analysis under BC law.
Spousal support is one of the most misunderstood areas of BC family law. Many people assume it is automatically payable after any relationship breakdown, or that it is never available because both spouses worked. Neither assumption is correct. Spousal support is nuanced, fact-dependent, and requires careful analysis before any conclusions can be drawn.
The First Question: Who Is a "Spouse"?
Before determining whether spousal support is payable — and in what amount — you first need to establish that the person claiming support is a legal "spouse" as defined by the applicable legislation.
In BC, spousal support can be claimed under two statutes:
- The Divorce Act (federal): Applies only to legally married spouses. If you were married and are seeking a divorce, the Divorce Act governs spousal support.
- The Family Law Act (FLA, provincial): Applies to both married spouses and common-law spouses — defined as persons who have lived in a marriage-like relationship for at least two consecutive years (or less, if they have a child together). This applies equally to all sexes and sexual orientations.
If the person claiming support does not meet the definition of "spouse" under either statute, there is no statutory spousal support claim — regardless of how long the relationship lasted or how financially dependent one person was on the other.
Child Support Comes First
If there are children and financial resources are limited, child support takes priority over spousal support. The federal Child Support Guidelines set mandatory amounts for child support, while spousal support is subject to more judicial discretion. If there is not enough income to pay both, child support must be paid first.
Eligibility: Not Just Need
Meeting the definition of "spouse" is necessary but not sufficient. After establishing the spousal relationship, eligibility for spousal support must be assessed on the facts. The three recognized grounds for spousal support are:
1. Compensatory support: One spouse made sacrifices that benefited the other — most commonly, one parent left the paid workforce (or reduced their career advancement) to be the primary caregiver for children. That spouse gave up years of employment experience, pension contributions, and earning capacity. Compensatory support recognizes this sacrifice.
2. Non-compensatory (needs-based) support: One spouse has genuine financial need and the other has the ability to pay — based on the disparity in their circumstances at the time of separation, particularly in long marriages where one spouse became economically dependent on the other.
3. Contractual support: The parties agreed in a separation agreement or marriage agreement that spousal support would be paid in specific circumstances.
If both spouses are economically independent at the time of separation, there may be no spousal support payable at all, regardless of the length of the relationship.
The Spousal Support Advisory Guidelines (SSAG)
The Spousal Support Advisory Guidelines — developed by law professors Carol Rogerson and Rollie Thompson and endorsed by the federal government — provide a framework for calculating spousal support amounts and duration. Unlike the Child Support Guidelines, the SSAG are advisory, not mandatory. However, BC courts have confirmed that the SSAG must be considered seriously and cannot simply be ignored.
The SSAG produce a range — a low, middle, and high figure for monthly support — based on the spouses' incomes, the length of the relationship, and other factors. They also suggest whether support should be time-limited (for shorter marriages), indefinite (for longer marriages or where the recipient is unlikely to become self-sufficient), or reviewable at a future date.
Lump Sum vs. Monthly Payments
If spousal support is payable, the parties or court must decide:
- Monthly payments: Taxable income to the recipient; tax-deductible for the payor (under specific conditions governed by the Income Tax Act)
- Lump sum: Usually not deductible for the payor and not taxable for the recipient — but there may be circumstances where a clean break is preferred over years of ongoing payments and potential disputes
- Reviewable support: Continues for a period and then must be reviewed — useful when the recipient's ability to become self-sufficient is uncertain
Varying or Ending Spousal Support
Spousal support is not necessarily permanent. If circumstances change significantly — the recipient remarries or enters a new marriage-like relationship, substantially increases their income, or if the payor retires or becomes disabled — either party can apply to vary or terminate support. This can be done by agreement (amending the separation agreement) or by court order.
Sea to Sky Law™ advises clients throughout BC on all aspects of spousal support — from initial eligibility assessment to calculating amounts, drafting agreements, and varying orders when life changes. Contact Andrew Liggett BA JD CD for clear, experienced advice.
No. Spousal support is not automatic — the claiming spouse must first establish entitlement based on compensatory grounds (career sacrifice) or non-compensatory grounds (economic hardship), and child support takes priority if children are involved.
BC courts use the Spousal Support Advisory Guidelines (SSAG) as a starting point — the guidelines produce a range of monthly amounts and durations based on income, length of relationship, and whether there are children.
Yes. Either spouse can apply to vary a spousal support order or agreement if there has been a material change in circumstances, such as a significant change in income, health, or the recipient's ability to become self-sufficient.
Yes. Under BC's Family Law Act, a spouse in a marriage-like relationship of at least two years has the same right to apply for spousal support as a legally married spouse.