Spousal Support

Canada’s Divorce Act deals with married spouses who have applied to court for a divorce. It also applies to former spouses who are divorced. 

Nova Scotia’s Parenting and Support Act applies to people who:

• are married, but neither spouse has applied for a divorce
• have a registered domestic partnership
• are in a common law relationship and
  • lived together intimately for at least 2 years
  • lived together and have a child together 

If you have a child together, you do not need to have lived together for 2 years. 

The Divorce Act and Parenting and Support Act state the factors that must be considered when deciding if a spouse is eligible for spousal support.

If you have children, child support is the priority. The Divorce Act and the Parenting and Support Act put child support obligations ahead of spousal support.

The Interjurisdictional Support Orders (ISO) Act is for when one former spouse lives in another province or country with the same interjurisdictional rules and procedures as Nova Scotia. 

Spousal support can be complex. It is helpful to look at case law (decisions by judges) and the Spousal Support Advisory Guidelines. 

It is best to speak with a lawyer to get advice about your eligibility for spousal support.

There are three steps to assessing eligibility for spousal support.

Step 1: Confirm that you are a spouse

To get spousal support, you must meet the spouse definition under the relevant law. 

The federal Divorce Act states you can apply for spousal support if you are married and have a divorce application or petition before the court. 

The Nova Scotia Parenting and Support Act states you can apply for spousal support if:

• you are married, but neither spouse has applied for a divorce
• you have a registered domestic partnership
• you are in a common law relationship and have:
  • lived together for at least 2 years
  • lived together and have a child together

If you have a child together, you do not need to have lived together for 2 years.

Step 2: Consider the facts of your case

To order spousal support, the judge must be satisfied that:

• the spouse seeking support has financial need or that they are entitled to compensation based on the facts of their case
• the other spouse has the ability to pay. 

The Divorce Act lists 4 objectives for spousal support:

• recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown
• considering the financial consequences of caring for children, over and above child support
• relieving any economic hardship caused by the relationship’s breakdown 
• promoting the economic self-sufficiency of each spouse within a reasonable amount of time.

The Divorce Act requires the court to examine the condition, means, needs and other circumstances of each spouse, including:

• how long they lived together
• the functions performed by each spouse while they lived together, and
• any order, agreement or arrangement relating to spousal or child support. 

Judges will think about:

• the roles and responsibilities in the relationship. For example, how were the housework and childcare divided?
• any agreement, in writing or not, that said one spouse would support the other
• the terms of any marriage contract or separation agreement between the spouses
• care and parenting arrangements for children of the relationship
• the obligations of each spouse towards any children
• the ability of the paying spouse to pay child support, if applicable 
• the ability of the supporting spouse to contribute to support themselves
• whether either spouse has a physical or mental disability
• if a spouse is unable to get paid employment
• a spouse’s contribution to the education or career potential of the other
• the reasonable needs of each spouse
• the separate property of each spouse.

If you conclude you may be eligible for spousal support based on this information, go to Step 3.

Step 3: Determine how much support you may receive and how long it may last

If you may be eligible for support, you can use the Spousal Support Advisory Guidelines to determine how much spousal support you may receive and how long support may last.

How long you will receive spousal support depends on:

• the length of the marriage or relationship
• age of the spouses when support is ordered
• the employment prospects of the recipient spouse — for example, whether the spouse getting support is working or retraining to find work.

Spousal support may be paid for a fixed time with a specified end date or for an indefinite time. Each situation is different.

If you or your spouse have a significant change in circumstances, the court may review your agreement. It may change how long and how much spousal support a spouse must pay. Reasons to review spousal support could be retirement, job loss or job change. 

The federal Spousal Support Advisory Guidelines (SSAG) were developed to help predict how much and for how long spousal support may be paid.

The Child Support Guidelines are law. The Spousal Support Advisory Guidelines are not law. However, the courts in many provinces use the SSAG when making spousal support decisions. In Nova Scotia, the courts use the SSAG to help decide how much support should be paid and for how long.

There are two formulas in the SSAG: one for spouses with dependent children and one for spouses without. 

Support for spouses with dependent children is based on the difference in the spouses’ income after tax (net income) and the amount of child support paid. 

Support for spouses without dependent children is based on the difference in the spouses’ incomes before tax (gross income) and the length of their marriage. 

Before you look to see what the SSAG predicts as a payment range, remember they do not deal with whether a spouse is entitled to get support under either act. 

The formulas are quite complicated. Get help from a lawyer before you finalize any spousal support agreement or court order.

If you apply for a spousal support order, you are entitled to see your spouse’s financial information. This includes income tax returns, pay stubs, and itemized statements of income, expenses, assets, and liabilities. 

Both spouses must disclose their property and debts and a budget to show their monthly expenses. They may also have to provide financial information about anyone they live with, such as a new spouse or partner.

You can learn more about disclosure of financial information at nsfamilylaw.ca and in the Nova Scotia Civil Procedure Rules, which cover court rules and forms, including statement of income, statement of expenses, and statement of property for financial disclosure in the context of spousal support.

How often support is paid depends on your arrangement with the payor spouse. Spousal support can be paid voluntarily or according to a written agreement or court order. Support orders can be on a temporary (interim) or a final basis. Even final spousal support orders may be adjusted if someone’s situation changes. 

Periodic: Your payments may be periodic (monthly), a lump sum or both. It can be either time-limited or have no set ending.

Lump sum: You may receive one payment of spousal support. 

Fixed: You may be paid for a set time with an end date. It can be based on years or an event, like when the spouse receiving support retrains for new employment.

Indefinite: You may be paid indefinitely. 

Income tax laws often change. Contact the Canada Revenue Agency (CRA) or a lawyer for current and correct information about spousal support tax status.

Periodic spousal support payments may qualify as an income tax deduction for the paying spouse. If you receive payments, they must be included as income and tax paid on your total annual income.

Generally, lump sum payments of spousal support are not tax deductible and do not need to be claimed as income.

If you said you didn’t want spousal support in an agreement, or it is confirmed in a court order, it is unlikely you can make a future claim.

In some circumstances, you may be able to convince a judge that the court order or agreement should be overturned. This is an unusual situation. Speak with a lawyer to learn about what evidence is needed to make an application and your chances of success.

If you have trouble getting money from your spousal support order, contact the Maintenance Enforcement Program (MEP). You may register at any time. It is free.

If you have a separation agreement, you can likely register the agreement with the court. This makes it a court order that the MEP can then enforce.

• Ways to get more family law information and legal advice.
• Go to nsfamilylaw.ca for further general spousal support information
• Justice Canada information about spousal support at justice.gc.ca, and the Spousal Support Advisory Guidelines
• Contact the Canada Revenue Agency for information on the tax treatment of spousal support,