Spousal Support

Frequently Asked Questions About Spousal Support

1. What is spousal support?

Spousal support, or ‘spousal maintenance’, is money paid by one former spouse or partner, to another. It may be paid for different reasons, and in different ways, but is often paid to help the lower income spouse cover their living expenses. This type of support is sometimes called ‘alimony’ in other countries.

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2. What’s the difference between spousal maintenance and spousal support?

There is practically no difference between these two terms. Spousal ‘maintenance’ is governed by the provincial Maintenance and Custody Act, while spousal ‘support’ is governed by the federal Divorce Act.

In general, this website uses the term spousal support when referring to either situation.

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3. Who can get spousal support?

The law around spousal support is one of the most complicated in family law.  There are many different factors that the court will look at to decide if a spouse should get spousal support, how much they will get, and how it will be paid.  Just because you were not married to your ex-partner, or did not have children with them, does not necessarily mean you cannot get spousal support. You do not necessarily have to be unemployed to qualify for spousal support.

In Canada, there are Spousal Support Advisory Guidelines (SSAGs) that can be helpful in determining how much spousal support you might get if you are entitled to it, and for how long. Unlike the Child Support Guidelines, the SSAGs are not law – the courts may use the SSAGs as a helpful tool, but they are not required to. It is recommended that you speak to a lawyer to help you understand how to use these Guidelines.

You can apply for spousal support whether you are male or female, and regardless of whether you were in a heterosexual or same sex relationship.

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4. Can I get spousal maintenance if I wasn’t married?

Maybe. You may apply to the court for an order for spousal maintenance whether you were married to your partner or not.  In Nova Scotia, you have to be living with your partner for at least two years before you can make an application for spousal maintenance under the Maintenance and Custody Act.

Many factors need to be looked at to decide whether or not someone will be given spousal maintenance.  Some of these factors could include how long the parties were together, the ages of the parties when they separated, how likely it is for the partner seeking spousal maintenance to be able to support themselves, and whether one partner benefitted financially from the relationship, while the other party did not (for example, if you moved around a lot with your spouse because of their work, and lost out on better employment for yourself as a result).

You should speak with a lawyer to see if it is likely that you will be awarded spousal maintenance.

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5. Can I get spousal support if I didn’t have children with my ex-partner?

You can apply for spousal support, regardless of whether you have children or not. If you do have children with the ex-partner from whom you are asking for spousal support, the payment of any child support takes priority over the payment of spousal support.

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6. Who determines whether or not I can get spousal support?

You can negotiate with your former spouse or partner on this issue, and figure out spousal support payments on your own, if possible. If you reach an agreement on this issue with your former spouse or partner, you can have the spousal support arrangements included in a separation agreement, or you can include the agreement in your uncontested divorce orders. Depending on where you live, there may be services like conciliation or mediation that can help both of you with this issue. You should always get independent legal advice, though, before signing any agreements.

If you cannot reach an agreement with your former spouse or partner, you can ask the court to decide this issue. If you were not married to your partner, or are separated and not ready to divorce, and both of you live in Nova Scotia, you would deal with spousal maintenance under the Maintenance and Custody Act. If you are filing for divorce or in the middle of a divorce proceeding, you would deal with spousal support under the Divorce Act.

If one of you lives in Nova Scotia, and the other person lives outside of Nova Scotia, and you are not divorcing at this time, you may have to use a different process, called the ‘ISO process,’ to apply for spousal support.

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7. What factors determine whether I can get spousal support?

Whether or not you are entitled to spousal support will depend on a number of different factors. The factors considered by the court may be different depending on whether you are using the Divorce Act or the Maintenance and Custody Act.

Some of the things the court may look at include:

  • The length of time you lived together
  • The functions each of you performed while living together (the division of labour, for example, who looked after what in the home, who looked after the children)
  • Any order, agreement or arrangement relating to the support of either spouse (for example, a court order or separation agreement)
  • The physical or mental disability of one of the parties
  • Any contributions by one party to the education or career potential of the other (for example, if you helped pay for your partner to go to school, or you moved around a lot to benefit your partner’s career, while yours suffered)
  • The reasonable needs of the spouses or partners
  • The separate property of each spouse or partner
  • The age of the spouses
  • The likelihood that the spouse receiving support can become economically self-sufficient

The court will not consider any ‘misconduct’ of a spouse in relation to the marriage when deciding on spousal support. For example, if one of the parties committed adultery, this does not affect whether they will pay or receive spousal support, or how much they might pay or receive.

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8. What are the Spousal Support Advisory Guidelines (SSAGs)?

The Spousal Support Advisory Guidelines, or SSAGs, were developed by two Canadian law professors as a guide to help bring clarity and predictability to the issue of spousal support under the Divorce Act. The SSAGs do not deal with the issue of who should get spousal support (who is ‘entitled’ to it). The SSAGs can be used once the court determines that someone is entitled to support, or if the parties agree on the issue of entitlement, to help figure out how much they should get, and for how long.

The SSAGs are guidelines only – they are not law the way the Child Support Guidelines are. This means that the courts can use them as a helpful tool, but they do not have to. It also means that the guidelines can be used for spousal maintenance issues, when the two parties were not married (and therefore are not using the Divorce Act).

For more information on the Spousal Support Advisory Guidelines, click here.

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9. What are the Spousal Support Advisory Guideline formulas?

There are two formulas included in the SSAGs for helping to work out spousal support amount and duration (length) – one formula for when there are dependent children, or ‘children of the marriage’, and one for when there are no dependent children, or ‘children of the marriage.’

A ‘child of the marriage’ is defined in the Divorce Act, and means a child who is still a minor (under 19 in Nova Scotia), or over 19 but still dependent (usually because they are still in school, or unable to support themselves for another reason, like having a disability). If you had children, but they are grown and independent, you would likely use the ‘without children’ formula under the SSAGs.

The SSAGs use the ‘with children’ and ‘without children’ formulas because they take into account the child support that is being paid, along with any potential spousal support.

The formulas give a range for the amount of spousal support that may be paid, not a specific number. The specific number is to be negotiated, or to be determined by a judge, and depends on the facts of the situation.

The ‘without children’ formula mainly looks at two factors: how long the parties were married, and the difference in income between the parties.

The ‘with children’ formula considers the fact that child support is a priority, and also looks at the reduced ability to pay spousal support when there is also a child support obligation, and certain tax and benefit issues. It also factors in the need to provide care and support for the children. The length of the marriage is generally not a factor in using the ‘with children’ formula.

The formulas are designed to be used for first-time spousal support decisions. They do not take into account the many factors that can be considered when a spousal support order is being reviewed or changed (‘varied’).

The SSAGs and the formulas look at many different pieces of information, and using them can be difficult. You should speak with a lawyer for advice about your situation, and to get help in doing these calculations. Remember, the SSAGs and the formulas are guides only – the court does not have to use this information, though it can be helpful for you to provide this material to the court.

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10. Can I get spousal support if I’m collecting social assistance?

The fact that you draw your income from social assistance or income assistance is not considered when determining whether you qualify for spousal support; however, if you receive spousal support while on social assistance, the amount you receive for your support will be taken off of your assistance payment.

If you are worried that your ex will not pay their child or spousal support payments, you may be able to assign your support order to the government. This means that if your ex does not pay their support, you can still get your full assistance payment, and the government can collect the money owed from your former spouse. If this is your situation, speak to your assistance worker for more information.

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11. What if my ex-partner won’t pay their spousal support?

If you do not have a court order for spousal support, you may be able to apply to the court for one. Where you make your application can depend on where you live, where the other party is living, and whether you were ever divorced from the other person. Sorting out ‘jurisdiction’ for spousal support issues can be difficult, and you should speak with a lawyer or court staff for help.

If you and the other party have a separation agreement, you can apply to register the agreement with the court. Once it is registered, it is a ‘court order,’ and support amounts can be enforced through MEP.

If you have a court order or registered separation agreement that deals with support, and the other party is not paying it, you should contact the Maintenance Enforcement Program (MEP) at 424-0050 in the Halifax area, or toll-free at 1-800-357-9248 from anywhere else in Nova Scotia. All child or spousal support/maintenance orders in Nova Scotia are automatically sent to MEP for enforcement. For more information about MEP, click here.

If you are already enrolled with MEP, you will need to speak with your enforcement officer if you are having difficulty getting your support payments, or if the other party is not paying. If MEP is not enforcing the order, there may be other options available to you, but you will need to get advice from a lawyer about what to do.

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12. When do I stop paying spousal support?

That depends on your situation. Determining when spousal support should stop may be very complicated.

Your order may already say how long the support is to be paid, with an end date for the support. Your order may say that the order can be reviewed if a certain event occurs. For example, the order may say that the spousal support is to be reviewed if the party receiving support becomes employed or gets remarried. You will probably have to make an application to the court for the order to be changed or reviewed.  Some orders are worded in such a way that the support cannot be stopped or can only be changed in specific circumstances.

Speak to a lawyer for advice if you are not sure whether you can or should make an application to change or stop your spousal support.

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Last updated on May 21, 2013 - 3:45pm
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