Spousal Support in BC: Who Qualifies, How Much and for How Long

After a separation, one of the first money questions is whether one spouse will have to support the other, and if so, how much and for how long. In British Columbia the answer depends on the facts of your relationship, not on a fixed table.

This guide explains who can ask for spousal support, how entitlement is decided, how amount and duration are usually worked out, and the deadlines, tax rules and child support points that affect both the spouse who pays and the spouse who receives.

Who can ask for spousal support in BC

Under BC's Family Law Act, you can ask for spousal support if you:

• were married
• lived together in a marriage-like relationship for at least two years, or
• lived together in a marriage-like relationship for less than two years and have a child together.

The child rule applies to support only; dividing property and pensions requires marriage or at least two years in a marriage-like relationship.

Married spouses can also claim under the federal Divorce Act, which uses very similar factors. Our guide on how to get a divorce in BC explains that process.

Entitlement comes first

Support is payable only if a spouse is entitled to it. Deciding entitlement means considering four objectives in section 161 of the Family Law Act (the Divorce Act's are almost identical):

• recognising economic advantages or disadvantages arising from the relationship or its breakdown
• sharing the financial consequences of caring for a child, beyond child support
• relieving economic hardship caused by the breakdown
• as far as practicable, promoting each spouse's economic self-sufficiency within a reasonable time.

Claims usually rest on one or more of three bases:

• Compensatory. The relationship cost one spouse earning power, for example by leaving work to raise children or moving for the other's job, or it boosted the other's career.
• Needs-based. After separation, one spouse faces economic hardship, for example because of illness or limited earning ability, even if the relationship did not cause it.
• Contractual. The spouses agreed that support would be paid, usually in a written agreement. An agreement can also limit or release support, though a court can set one aside in some circumstances.

An income gap on its own does not create entitlement, although a significant gap when the relationship ends often points towards some. Fault for the breakdown is generally irrelevant. Under the Family Law Act, the exceptions are narrow, such as conduct that arbitrarily or unreasonably causes, prolongs or aggravates the need for support.

How much, and for how long

The Family Law Act says amount and duration depend on each spouse's conditions, means, needs and other circumstances, including how long you lived together, the roles each of you played, and any existing agreement or order. Support can be paid monthly or as a lump sum.

To put numbers on those factors, lawyers and courts commonly use the Spousal Support Advisory Guidelines. They are not law and do not decide entitlement; once entitlement is established, they produce ranges rather than a single figure. Designed for the Divorce Act, they are often used under provincial law too.

Without child support formula

Where no child support is payable, the amount ranges from 1.5 to 2 per cent of the difference between the spouses' gross incomes for each year they lived together. From 25 years, the range is fixed at 37.5 to 50 per cent. The upper end is also capped at the amount that would equalize the spouses' net incomes, which can bring it below 50 per cent. Duration ranges from half a year to one year for each year together. Support has no set end date after 20 years together, or after at least five years where the years together plus the recipient's age at separation total 65 or more.

Example: a couple lived together for 10 years and separated with gross incomes of $90,000 and $40,000. The $50,000 difference gives a range of 15 to 20 per cent, or $7,500 to $10,000 a year (roughly $625 to $833 a month), for five to ten years.

With child support formula

Where child support is also payable, the formula works from each spouse's net disposable income after child support. Its range generally leaves the recipient with 40 to 46 per cent of the couple's combined net disposable income, and duration is tied to the length of the relationship or the children's ages.

Where a case falls within a range, or whether an exception applies, depends on the facts and the incomes used. That is where advice matters most.

Deadlines, and changing support later

Under the Family Law Act, a spousal support claim must be started within two years after separation for unmarried spouses, or after the divorce order (or a nullity order) for married spouses. The clock is suspended while you are engaged in family dispute resolution with a family dispute resolution professional, such as a qualified family mediator, or in another prescribed process. Informal talks should not be assumed to stop it. The Divorce Act has no equivalent deadline for a first claim, but it is safer to raise support before or alongside a divorce. Our first-steps checklist for separating in BC covers what to do early.

Support can change. Under the Family Law Act, a court can change, suspend or end an order if either spouse's circumstances have changed, if substantial new evidence becomes available, or if financial disclosure was lacking; the Divorce Act also requires a change in circumstances. Restarting support after a time-limited order has ended is harder. An agreement or order can also build in a review. A written support agreement can be set aside only on specific grounds, generally raised within two years of when they were, or should have been, discovered; our guide to separation agreements explains them.

Tax, and the link with child support

For income tax, periodic spousal support paid under a court order or written agreement while you live apart is generally deductible by the payer and taxable to the recipient. Informal payments without an order or written agreement do not qualify, and a non-periodic lump sum is generally neither deductible nor taxable. Payments made before the order or agreement qualify only if it says so. Child support under an order or agreement made after April 1997 is neither deductible nor taxable.

Child support comes first. Both the Family Law Act and the Divorce Act give priority to child support. If spousal support is reduced or refused for that reason, a later reduction or end of child support is a change in circumstances that allows spousal support to be revisited. The tax rules follow the same order: payments count as child support first, and all child support owed must be paid before any spousal support can be deducted.

Facing a spousal support claim? Check the ranges before you negotiate

Our family lawyers can explain whether support is likely to be payable, run the guideline ranges on your actual incomes, and negotiate or review a support agreement, or represent you in court.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.