Spousal support is a discretionary remedy in a British Columbia divorce. Payment is not automatic. It is a common misconception that spousal support will be automatic after a long marriage. Another common misconception is that spousal support is unavailable after a short relationship. Neither is necessarily true. A former spouse seeking support must establish entitlement. The length of the relationship is one of many factors.
As part of our Nanaimo family law practice, Candid Legal will review the specific facts in your case and inform you of the entitlement factors most relevant to you. We can also provide advice as to the range of spousal support awards that may be made, and what evidence would push a particular award to the lower or higher ends of the ranges. Armed with this information, we can strategize an approach to best protect your interests, and advocate on your behalf to optimize your results.
Both the federal Divorce Act and the British Columbia Family Law Act set out the following objectives as relevant in determining whether entitlement to spousal support exists:
If entitlement exists, the court must consider the condition, means, needs and other circumstances of each spouse before making a spousal support order. This consideration must include consideration of: the length of time the spouses cohabited; the functions performed by each spouse during cohabitation (i.e. the earning of income and the caring for children); and any order, agreement or arrangement relating to the support of either spouse.
Often, judges will rely on the spousal support advisory guidelines to determine the quantum (monthly amount and duration) of spousal support. These guidelines based their calculations on the incomes of both parties. In other words, accurate calculations depend on accurate incomes. If you are having difficultly obtaining proper financial disclosure from your former spouse and thus cannot accurately determine their income, we can help.
When a party who could or should be working refuses to work, or a party capable of earning a higher income intentionally depresses their income to avoid paying support, or where declared income does not reflect actual income, accurate spousal support amounts cannot be calculated. If any of these scenarios exist for you, contact us for advice.
Income levels can change, sometimes dramatically. Changes in the income earned by either party, whether increases or decreases, can persuade a court to change the amount of spousal support required, or to terminate the payment of spousal support altogether.
Where the reasons for a change in income are clear, unexpected, and demonstrably not due to any unreasonable choices of the payor, variations to spousal support can often be obtained by agreement. Any such agreement should be in writing and should ideally be filed with the court registry to ensure that the amount of spousal support that should be paid is clear and enforceable. We can help you negotiate these agreements, and where agreement cannot be reached, we can help you obtain relief from the Court.
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