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Who can get spousal support

Spousal support is paid to a former spouse under an agreement or court order. Spousal support is also called maintenance.

Under BC law, you can apply for spousal support if:

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

See Spousal support for more information.

This section includes some common spousal support clauses for you to choose from. Not all possibilities are covered. The CLEBC manual covers more options.

Negotiating spousal support

Consider these questions when you negotiate spousal support:

• Did your relationship benefit or harm either of you financially?
  For example, did one of you work outside the home during the relationship or stay home to care for children? Did one of you work while the other went to school?
• How long were you married (or living together)?
• Can you earn any income? Factors to consider include:
  • health,
  • age,
  • training or experience,
  • the possibility of getting training,
  • ability and educational background, and
  • whether you have young children.
• Does one spouse earn a lot less than the other?
• Is the spouse who is being asked to pay able to pay? Is the payor's income steady or does it change? What are the payor's future prospects?

The Supreme Court of Canada has said that it's a good idea for family law agreements to set out why spousal support is being paid. This means writing down what factors you considered when you decided about spousal support.

Figuring out the amount

The Spousal Support Advisory Guidelines can help you figure out the amount of spousal support that should be paid. The guidelines aren't the law. Neither you nor a judge has to follow them. But if your case went to court, the judge would probably look at the guidelines and consider the questions listed above to make a decision.

The guidelines take into account:

• both spouses' incomes,
• how long you were together,
• your need (if you have a disability),
• your age,
• your ability to earn an income,
• what you gave up financially to be in the marriage, and
• whether you have children.

See Spousal support for more information.

Your basic information

Type in the same short names for you, the other person, and your children that you used in the introductory clauses. They'll then appear in the clauses below in place of Party 1, Party 2, or Name.

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In some situations, you might agree that neither of you will pay spousal support. For example, you might decide to do this if you:

• have similar income levels, or
• you divided your property in a way that's intended to make up for not paying spousal support.

In this case, include a clause in your agreement that says both of you are waiving spousal support and why. This means you're both giving up any right you have to spousal support. 

If you include this waiver in your agreement, it's a good idea to include a clause that says what was received in exchange (for example, a bigger share of property).

A court can change an agreement about spousal support if the agreement was made unfairly. For example, an agreement would be unfair if one of you:

• didn't share financial information,
• took advantage of the other spouse's vulnerability, or
• didn't understand what they were signing.

A court can also change an agreement if it's significantly unfair according to section 164(5) of the Family Law Act.

Include clause 1 if it applies.

• If you both agree to waive spousal support, include clause 1 and click Don't include on all other clauses in this section.
• If one of you will pay spousal support to the other, click Don't include on clause 1 and choose your clauses in all other parts of this section.

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Spousal support is usually a set amount paid once a month. It's a good idea to include the date when spousal support will end. (It's also a good idea to describe what might end the obligation to pay spousal support. See clauses 18 – 26.)

Include all the clauses that apply.

• For clause 2:
  • Click the name of the person who will pay spousal support. The field will update with your names.
  • Type in the amount they will pay each month.
• For clause 3, type in the day of each month when spousal support will be paid and the date when payments will start.
• For clause 4:
  • Click the name of the person who will pay spousal support. The field will update with your names.
  • Type in the number of months for which that person will provide post-dated cheques in advance.
• For clause 5, type in the date when the spousal support agreement will end.

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Under the Income Tax Act, spousal support payments are deductible for the payor, and included in the recipient's income. You can't make an agreement that changes this tax law.

Include all the clauses that apply.

• For clause 6:
  • Click the name of the person who will be receiving spousal support. The field will update with your names.
  • Type in the date when spousal support will start.

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Since spousal support is based on factors that can change over time, you might want to include clauses that describe when you would vary (change) your spousal support agreement.

Include clause 7, 8, or 9.

Include clauses 10 – 14 as appropriate.

• Include clause 7 if you don't want to allow any changes at all to spousal support.
• Include clause 8 if you want spousal support to be automatically adjusted every year, and
  • Type in the date when you want the amount to be calculated.
  • Type in whether you want the amount to be based on the low, mid, or high range of the Spousal Support Advisory Guidelines.
• Include clause 9 if you want to review spousal support based on specific factors
  • Type in how often you and the other person will meet to review and revise spousal support.
  • For clause 10, click the name of the person who will be receiving spousal support.

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If you included review or automatic variation clauses, then also include a clause about exchanging the information that will be needed to make changes or do a review.

Include clause 15 if you included clause 8 or 9.

• Type in the month and day of each year when you and the other person will exchange income tax returns.

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You can include the following two clauses that say that neither of you will apply to court to change the spousal support amount unless you have first tried to settle your dispute by negotiation, mediation, or both.

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It's a good idea to set out when the spousal support payments will end. The list below shows some events that might trigger the end of spousal support payments.

Include all the clauses that apply.

• For clause 20, type in the number of days that the person receiving spousal support must be in a marriage-like relationship before spousal support ends.
• For clause 24, type in the training, course, or education the person receiving spousal support must complete before spousal support ends.
• For clause 25, type in the length of time and the age the youngest child turns when spousal support will end.
• For clause 26, type in any other reason that will end spousal support.