Spousal Support and Interdependent Partner Support
In Alberta, spousal support—or interdependent partner support—is financial support one spouse or partner may be entitled to when a marriage or Adult Interdependent Relationship ends. Support can be ordered by the court to help a former spouse or partner maintain a reasonable standard of living after separation or divorce.
When Spousal Support Applies
Support may be ordered if the parties are:
Applying for a divorce (or in some cases after divorce); or
Ending an Adult Interdependent Relationship.
Which Law Applies
If spousal support is part of a divorce, the court will apply the Divorce Act (Canada).
If the parties are married but not yet divorced, or are ending an Adult Interdependent Relationship, the court will apply the Family Law Act (Alberta).
Free Consultation
If you have any questions about your ability to claim spousal/partner support or your obligation to pay support, please contact our office for a free consultation at: (403) 288-0009 or at: murray@bodnaruklaw.com
Objectives of Spousal/Interdependent Partner Support
Both the Divorce Act (Canada) and the Family Law Act (Alberta) discuss the objectives of a spousal or interdependent partner support order. The objectives are to:
- Recognize any economic advantages or disadvantages to the spouses/partners arising from the relationship or its breakdown;
- Apportion between the spouses/partners any financial consequences arising from the care of any child of the relationship over and above any obligation for the support of any child of the relationship;
- Relieve any economic hardship of the spouses/partners arising from the breakdown of the relationship; and
- In so far as practicable, promote the economic self-sufficiency of each spouse/partner within a reasonable period of time.
Both statutes state any misconduct of the parties is not to be considered when deciding whether to grant spousal or partner support and the amount to be paid.
A spousal or partner support order is not intended to punish a spouse/partner for bad behaviour or to reward a spouse/partner for good behaviour.
Factors to be Considered
The Divorce Act (Canada) directs that when making a spousal support order, the court must consider the condition, means, needs, and other circumstances of each spouse, including:
- the length of time the spouses cohabited (lived together);
- the functions performed by each spouse during cohabitation; and
- any Order, Agreement, or arrangement relating to support of either spouse.
The Family Law Act (Alberta) also lists the above factors; however, the Act also informs the court to consider these factors:
- any legal obligation of the spouse/partner having the support obligation under the Order to provide support for any other person (e.g. another spouse or children);
- the extent to which any other person who is living with the spouse/partner having the support obligation under the Order contributes towards household expenses and thereby increases the ability of that spouse/partner to provide support; and
- the extent to which any other person who is living with the spouse/partner who is to receive support under the Order contributes to household expenses and thereby reduces the financial needs of that spouse/partner.
Determining the Amount of Spousal/Partner Support
The court will review all the facts surrounding the parties’ circumstances and must first decide whether the spouse/partner asking for spousal or partner support is entitled to receive support. If the court decides the person is not entitled to spousal or partner support, that is the end of the matter.
If the person is entitled to spousal or partner support, the court will decide the amount of support to be paid. The court will look at the objectives and the factors of the Divorce Act (Canada) and the Family Law Act (Alberta) when making that decision; however, in recent years, the courts have turned to the Spousal Support Advisory Guidelines to help them decide the amount of support.
In most cases, when spousal or partner support is paid on a periodic basis (i.e. monthly or annually rather than in a lump sum), the person receiving the support will claim it as income on his/her income tax return. The person paying the support will claim the amount paid as a deduction on his/her income tax return.
Child Support Takes Priority
The Divorce Act (Canada) and the Family Law Act (Alberta) each state that when making support orders, the court must give priority to child support over spousal or partner support. If there is not enough money to pay for both child and spousal or partner support, then, it is the spousal or partner support that is to be reduced. In those cases, it may be possible for the court to increase the spousal or partner support after the children are grown and no longer need child support.
Duration of Spousal/Partner Support
The length of time that spousal or partner support must be paid depends upon the objectives and factors listed above; however, the Spousal Support Advisory Guidelines do offer guidance to the courts for making the decision about how long support should be paid.
When there are no children, the Spousal Support Advisory Guidelines indicate that spousal support should continue for between one-half to one year for each year the parties lived together.
If the parties lived together for more than 20 years, or if you add the years of living together to the recipient’s age and the total is greater than 65, a court may order support to be paid indefinitely.
When a court grants an order for indefinite spousal or partner support, it does not mean support will continue forever. Instead, the court may decide to leave the term of support open-ended to allow for greater flexibility. An indefinite order for support may be varied or terminated in the future depending on the circumstances of the parties, such as the payor spouse/partner reaching retirement age.
When there are children, the Spousal Support Advisory Guidelines specify the courts may use the same guidance as above, or, for shorter marriages, they may order that support may end when the youngest child starts school, or when the youngest child finishes school.
There is a wide range of potential outcomes when it comes to how long spousal support is payable. The parties may agree, or the court will decide based on the particular facts of the case.
No Double Dipping
In cases of long-term relationships, spousal or partner support may be payable indefinitely; however, in those cases, the parties have usually already divided their assets, including pension plans.
If that has occurred, when the payor retires, the payor will be living on his/her share of the pension. If he/she were to continue paying spousal or partner support, the recipient would then be double dipping – i.e. receiving property that had already been divided. In those cases, the payor may be able to return to court to have spousal support reduced or terminated.
Changing Spousal/Partner Support
A party can apply to the court to vary a spousal or partner support order if there is a major change in the condition, means, or other circumstances of either of the parties.
If a spousal or partner support order has a clause stating support is to end at a specific date, and the party receiving the support wishes to extend it, the party applying to vary the existing order must prove:
- the variation order is needed to relieve economic hardship;
- the economic hardship arose from the change in circumstances;
- the economic hardship and/or the change in circumstances are related in some way to the marriage; and
- If the parties had known the change in circumstances would occur at the time they entered into the previous spousal or partner support order, that order would have been different from what it was.
Where a couple has a negative net worth, i.e., debts greater than assets, then, the allocation of the debt payments can have a dramatic impact upon ability to pay support. If the payor of spousal support is required to pay a disproportionate share of the family debts, then, there is often some reduction in the amount of spousal or partner support payable. The reduction may only be for a specified period, depending upon the amount of the outstanding debts owing.
