About spousal support
The federal Divorce Act sets out the spousal support rules for married couples who divorce. Since the Divorce Act is a federal law, the rules apply across Canada.
Provincial or territorial laws set out the rules for unmarried couples who were in a common-law relationship and for married couples who separate but who are not divorcing.
Under the federal Divorce Act, spousal support is most likely to be paid when there is a big difference between the spouses' incomes after they separate. However, this is not always the case. A court may decide that the spouse with the lower income is not entitled to support. The court may reach this decision if that spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the relationship.
Under provincial law, common-law partners in Quebec are not entitled to spousal support when they separate. (In Quebec, common-law partners are usually referred to as "de facto spouses.") In other provinces and territories, a common-law partner may be eligible for spousal support from the other partner. This may depend on how long the couple lived together before they separated. For example, in some provinces and territories a common-law couple must live together for two or three years before either partner is eligible for spousal support.
Provincial and territorial rules vary across Canada. You are encouraged to check the website of your provincial or territorial Ministry of Justice or Attorney General for this information or you may contact a lawyer.
Factors judges consider
Judges must consider a number of factors when deciding if a spouse should get support after a divorce. These factors include:
- the financial means and needs of both spouses;
- the length of the marriage;
- the roles of each spouse during their marriage;
- the effect of those roles and the breakdown of the marriage on both spouses' current financial positions;
- the care of the children;
- the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and
- any orders, agreements or arrangements already made about spousal support.
Judges must also consider whether spousal support would meet the following purposes:
- to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage;
- to compensate the spouse with the lower income for ongoing care of children; or
- to help a spouse who is in financial need if the other spouse has the ability to pay.
At the same time, the judge must consider that a spouse who receives support has an obligation to become self-supporting, where reasonable.
Canada has no-fault divorce law. This means the reasons the marriage ended do not affect a spouse's legal obligation to support the other spouse following a divorce.
Payment of both Child and Spousal Support
If either spouse is paying child support, the judge must also determine how a requirement to pay spousal support would affect child support payments. The Divorce Act clearly states that a judge must give priority to child support when a person applies for both child and spousal support. Both parents have an obligation to support their children.
Learn more in the child support section of our website.
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