Spouses may claim spousal support under the DA or the FLA. A party’s entitlement to receive spousal support is always an initial threshold issue that must be addressed before considering the amount and duration of an order or agreement for spousal support. Where a party is entitled to receive spousal support, support can be paid by:
- a limited number of periodic payments;
- a single lump-sum payment;
- a combination of periodic payments and lump-sum payments;
- an indefinite number of periodic payments subject to review upon the occurrence of one or more prescribed events (such as the recipient’s remarriage, employment or receipt of pension benefits) or the passage of a defined amount of time; or
- permanent periodic payments.
The FLA links the division of family assets and the payment of spousal support in a manner unique to BC. Section 95(3) of the FLA, as it relates to unequal division of family assets, specifically considers the extent to which the financial means and earning capacity of spouses have been affected by the responsibilities and other circumstances of the relationship and if, on making a determination respecting spousal support, the objectives of spousal support have not been met.
Previously, under the FRA, the court was required to consider property division first and then consider spousal support. Section 95(3) of the FLA appears to be saying that they are considered together, or that spousal support is considered first. We can expect the court to consider this question as it may be a departure from the previous method of considering reapportionment and spousal support.
Entitlement under the Divorce Act
The jurisdiction to award spousal support under the DA is set out in s. 15.2. “Spouses” entitled to apply for support are defined as persons who are or were married to each other. Only the BC Supreme Court has the jurisdiction to make spousal support orders under the DA.
The court may make a spousal support order if one of the spouses is ordinarily resident in BC at the commencement of the proceeding or both spouses accept jurisdiction of the court (DA s. 4 (1)). The court has discretion to award lump sum payments or periodic payments for a defined or indefinite period, or on other terms it thinks just.
When making a spousal support order under the DA, the court is obliged to take into consideration the conditions, means, needs and other circumstances of each spouse including the length of time the spouses cohabited, the functions they performed while cohabiting, and any order, agreement, or arrangement relating to support of either spouse.
The objectives of the spousal support order are set out in s. 15.2(6) of the DA. According to the Supreme Court of Canada in the leading cases of Moge v. Moge ,  3 S.C.R. 813 and Bracklow v. Bracklow,  1 S.C.R. 420, the objective of the spousal support provisions of the DA is “to promote the equitable sharing of the economic consequences of marriage and marriage breakdown”.
In Moge, the court described three bases for entitlement to spousal support:
- contractual, where the parties have a marriage or separation agreement imposing an obligation to pay support;
- compensatory, where a spouse has given up economic opportunities as a result of the marriage; and,
- non-compensatory or needs-based support, where a spouse is unable to support him- or herself after marriage breakdown and the other spouse has the means to provide support.
Under the compensatory model, the court will consider compensation for a spouse who has given up economic opportunities during or as a result of the marriage, such as a spouse who abandoned a career to raise children or live with the other spouse. Because compensatory claims are meant to address economic loss, a compensatory obligation to pay spousal support may survive the recipient’s financial independence and repartnering.
The needs-based model is based entirely on the needs of the recipient and the ability of the payor to provide support. The court will determine what effect the marriage had on impairing or improving each spouse's economic prospects and capacity for self-sufficiency.
The standard of living enjoyed during a relationship is primarily relevant in the case of long marriages. In Moge, the court stated that the marriage should be regarded as a joint endeavour such that the longer the marriage, the greater will be the presumptive claim to equal standards of living upon its dissolution.
Note that agreements limiting spousal support may not be conclusive of the issue. In Miglin v. Miglin, 2003 SCC 24, the court held that a final agreement was not in substantial compliance with the overall objectives of the DA for spousal support where it was not made with the intention to achieve certainty and finality, a party’s capacity to contract was impaired, and full disclosure had not been made. In certain circumstances, usually limited to contractual defences, consent orders may also be open to review by the court.
Entitlement under the Family Law Act
Both the Supreme Court and the Provincial Court have jurisdiction to award spousal support. Section 160 of the FLA confirms that the starting point for determining spousal support is entitlement. A person can be entitled to spousal support after consideration of the factors set out at s. 161 of the FLA. The factors read virtually the same as those set out at s. 15.1 of the DA. Once a party is found to be entitled to spousal support, s. 162 sets out the factors to consider when determining the amount and duration of spousal support based on the conditions, means, needs and other circumstances of each spouse. The factors set out in this section are similar to those in the DA and so the case law set out above related to entitlement under the DA should be considered.
Only spouses may apply for spousal support under the FLA. Section 3 defines “spouse” as including the following (for the purposes of spousal support):
- married spouses;
- persons cohabiting in marriage-like relationships for at least two years; and,
- persons cohabiting in marriage-like relationships for less than two years who have had a child together.
The “marriage-like” quality of a relationship is central to establishing the entitlement of unmarried persons. Simply living together does not constitute living in a marriage-like relationship. There are many cases in a family law and estate law context that resulted in a finding that the parties were not living in a marriage-like relationship even though they were living together. See for example, Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.). On the other hand, even where the parties were not living together they can still be held to be in a marriage-like relationship, see L.E. v. D.J., 2011 BCSC 671. For a good overview of the issue see Trevor Todd’s article “Common Law Marriage or Mere Housemates?”.
Under s. 170 of the FLA, the court may make an order for spousal support for a lump sum payment, or for periodic payments for a defined or indefinite period of time. This section also provides the court with the authority to make orders to secure support though a life insurance policy and to order that spousal support is binding on the estate of the payor.