Introduction

When a relationship ends, one of the most common financial questions is whether one spouse is entitled to receive spousal support from the other.

In Alberta, spousal support is not automatic simply because one person earns more than the other. A difference in income can be important, but the person seeking support must first establish that they are entitled to receive it.

Spousal support is intended to address certain financial consequences arising from a relationship and its breakdown. Depending on the circumstances, support may compensate a spouse for economic disadvantages experienced during the relationship, recognize contributions or sacrifices made for the family, relieve financial hardship following separation, or assist a spouse in becoming financially self-sufficient within a reasonable period.

For married spouses who are divorcing, spousal support is governed by the federal Divorce Act. Alberta's Family Law Act also provides for support between spouses and qualifying adult interdependent partners.

Whether someone qualifies for spousal support depends on the circumstances of the relationship, including its length, the roles performed by each person, their incomes and earning capacities, childcare responsibilities, financial need, and whether the relationship created an economic advantage or disadvantage for either person.

Who Can Apply for Spousal Support in Alberta?

Both married spouses and qualifying adult interdependent partners may be able to seek support in Alberta.

For married couples, either spouse can potentially receive support. Spousal support is gender-neutral. A husband can receive support from a wife, and a wife can receive support from a husband.

The issue is not gender. It is the financial circumstances of the parties and the effect the relationship had on each person's economic position.

For example, suppose a wife earns $180,000 per year and her husband earns $50,000. During their marriage, the husband reduced his working hours for several years to care for their children while the wife advanced her career.

After separation, the husband may have a potential claim for spousal support based partly on the economic disadvantage associated with the roles the spouses adopted during the marriage.

Can Common-Law Partners Receive Spousal Support?

Potentially, yes.

In Alberta, the legal term commonly used for a qualifying common-law relationship is adult interdependent relationship.

Generally, two people may become adult interdependent partners if they live together in a relationship of interdependence:

• continuously for at least three years;

• for less than three years if the relationship is of some permanence and they have a child together; or

• after entering into an Adult Interdependent Partner Agreement.

A relationship of interdependence generally involves sharing one another's lives, being emotionally committed to one another and functioning as an economic and domestic unit.

Once a person qualifies as an adult interdependent partner, they may potentially seek partner support under Alberta's Family Law Act.

However, being legally eligible to make a claim does not mean support will automatically be awarded. Entitlement must still be established.

An Income Difference Does Not Automatically Mean Support Is Payable

One of the most important principles in spousal support is that a difference in income does not automatically create entitlement.

Suppose one spouse earns $150,000 per year and the other earns $75,000.

That difference may be relevant, but it does not tell the entire story.

Other questions may include:

• Did one spouse leave the workforce to care for children?

• Did one spouse reduce their hours or decline career opportunities?

• Did one spouse relocate to support the other's career?

• Did one spouse financially support the other through education or professional training?

• How long did the relationship last?

• Did the spouses become financially dependent on one another?

• Is either spouse experiencing financial hardship following separation?

• What are each spouse's present earning capacity and financial needs?

Two couples with identical incomes can therefore have very different spousal support outcomes.

What Creates Entitlement to Spousal Support?

Spousal support entitlement is generally discussed under three overlapping bases: compensatory, non-compensatory and contractual support.

Compensatory Support

Compensatory support recognizes economic advantages and disadvantages arising from the relationship or its breakdown.

A common example involves one spouse reducing their participation in the workforce to care for children.

Suppose a couple is married for 20 years. After their children are born, the wife leaves full-time employment and later returns only part-time so she can manage childcare and household responsibilities.

During those years, the husband continues working full-time and advances significantly in his career.

At separation, the husband earns $190,000 per year while the wife earns $45,000.

The income difference is important, but so is how that difference developed.

If the wife's lower earning capacity is connected to the roles the spouses adopted for the benefit of the family, she may have a compensatory claim for support.

Career sacrifices can include:

• leaving the workforce;

• reducing working hours;

• declining promotions;

• delaying education or professional training;

• relocating for a spouse's career;

• assuming greater responsibility for childcare; or

• supporting a spouse while they establish a career or business.

Non-Compensatory Support

A person does not necessarily have to prove that they sacrificed a career to qualify for spousal support.

Non-compensatory support generally focuses on financial need and hardship following the breakdown of the relationship.

This can become particularly relevant after a long relationship in which the spouses' financial lives became closely connected.

For example, a couple may separate after 28 years. Both spouses worked throughout the marriage, but one earns $160,000 while the other earns $55,000.

The lower-income spouse may not have a significant career-sacrifice argument. However, the length of the relationship, the spouses' financial circumstances, their needs and means, and the economic consequences of separation may still support a claim.

Contractual Support

Entitlement may also arise from an agreement between the parties.

A marriage contract, cohabitation agreement or separation agreement may contain provisions addressing spousal support.

If an agreement exists, its wording and legal effect should be carefully reviewed when determining whether support may be payable.

Does the Length of the Relationship Matter?

Yes. The length of the relationship can be an important factor.

A short relationship in which both people maintained separate careers and remained financially independent may result in a very different support analysis from a marriage lasting 25 or 30 years.

Longer relationships often involve greater financial integration. One spouse may have spent many years caring for children, managing the household or supporting the other spouse's career.

However, there is no automatic rule that someone qualifies for spousal support after a particular number of years.

Length is one factor among many.

Does Staying Home With Children Qualify You for Support?

It can be a significant factor, but it does not automatically guarantee support.

Courts may consider the roles each spouse performed during the relationship and the financial consequences of caring for children.

Relevant circumstances may include:

• how long the spouse was outside the workforce;

• their previous employment and education;

• their current income and earning capacity;

• the ages and needs of the children;

• whether childcare responsibilities continue after separation; and

• how the arrangement affected career advancement.

A spouse who stayed home for 15 years and has difficulty returning to comparable employment may have a substantially different claim from someone who took a brief parental leave and then returned to an established career.

Does the Lower-Income Spouse Have to Work?

Spousal support is not necessarily intended to provide permanent financial dependence.

The Divorce Act includes promoting economic self-sufficiency within a reasonable period as one of the objectives of spousal support, where practicable.

Depending on the circumstances, a spouse seeking or receiving support may be expected to take reasonable steps toward financial independence, such as:

• seeking suitable employment;

• increasing working hours;

• completing education or retraining;

• updating professional qualifications; or

• otherwise improving their earning capacity.

However, what is reasonable depends on the individual.

A 35-year-old who was out of the workforce for two years may have considerably different employment prospects from a 60-year-old who spent decades outside the workforce.

Self-sufficiency is therefore considered in the context of the person's age, health, education, employment history, childcare responsibilities and the circumstances of the relationship.

Can You Receive Support If You Already Have a Good Income?

Potentially.

A spouse does not necessarily have to be unemployed or unable to pay their bills to have a claim.

For example, one spouse might earn $90,000 per year while the other earns $275,000.

The lower-income spouse earns a significant income, but there may still be questions about whether they suffered an economic disadvantage because of the relationship.

However, the income difference alone is not enough.

Entitlement must be established before determining the amount or duration of support.

What About Adult Interdependent Partners?

The same general principle applies to qualifying unmarried partners: establishing the relationship is only the first step.

A person may meet Alberta's definition of an adult interdependent partner but still need to establish why support should be payable.

The court can consider circumstances including the parties' financial positions, the nature and length of their relationship, the roles they performed and other relevant factors.

This is why it is important not to assume that living together for three years automatically creates a right to receive monthly support.

Does Misconduct Affect Spousal Support?

Generally, spousal support is not intended to punish either person for the breakdown of the relationship.

Under the Divorce Act, misconduct in relation to the marriage is not considered when making a spousal support order.

For example, an affair does not automatically create or eliminate an entitlement to support.

The focus is generally on the economic consequences of the relationship and separation, rather than deciding which spouse was responsible for the relationship ending.

What If There Is a Marriage or Cohabitation Agreement?

A domestic agreement can significantly affect a spousal support claim.

Couples may have a:

• prenuptial or marriage agreement;

• cohabitation agreement;

• Adult Interdependent Partner Agreement; or

• separation agreement.

The agreement may provide for spousal support, limit support or contain a waiver.

However, the existence of an agreement does not mean that its effect should be assumed without reviewing it. The wording of the agreement, the circumstances in which it was signed and the applicable law may all be important.

If you signed an agreement dealing with support, it is advisable to have it reviewed before assuming that you either have a right to support or have permanently waived one.

How Much Spousal Support Will Be Paid?

Determining entitlement is different from determining the amount and duration of support.

The first question is:

Does the spouse qualify for spousal support?

If entitlement is established, the next questions are:

How much should be paid, and for how long?

Lawyers and courts frequently use the Spousal Support Advisory Guidelines, commonly called the SSAGs, to assist with these questions.

The Guidelines consider factors such as:

• the spouses' incomes;

• the length of the relationship;

• whether there are dependent children; and

• the circumstances of the spouses.

The SSAGs can provide ranges for the amount and duration of support.

However, the Guidelines do not create entitlement. A calculator showing a possible support amount does not, by itself, establish that someone has a legal right to receive support.

Does Child Support Affect Spousal Support?

It can.

Where there are dependent children, child support generally receives priority.

The existence of child support can affect the amount of income available to pay spousal support and can influence calculations under the Spousal Support Advisory Guidelines.

This is why families dealing with both child and spousal support should generally consider the two issues together rather than calculating them independently.

How Long Does Spousal Support Last?

There is no universal duration.

Spousal support may be:

• paid for a fixed period;

• reviewed after a particular event;

• varied when circumstances materially change; or

• indefinite in some circumstances.

An indefinite support arrangement does not necessarily mean support is guaranteed permanently. It generally means that no specific termination date has been established.

Duration can depend on factors such as the length of the relationship, the spouses' ages, their earning capacities, childcare responsibilities, the basis for entitlement and their ability to become financially self-sufficient.

How Bridgestone Law Can Help

Determining who qualifies for spousal support in Alberta requires more than comparing two incomes.

The circumstances of the relationship matter.

At Bridgestone Law, our Calgary family lawyers can help you understand whether spousal support may be payable and how Alberta law applies to your situation.

We can assist with:

• determining entitlement to spousal support;

• married spouse and adult interdependent partner claims;

• compensatory and non-compensatory support;

• career sacrifices and childcare responsibilities;

• reviewing income and earning capacity;

• applying the Spousal Support Advisory Guidelines;

• determining the amount and duration of support;

• reviewing marriage and cohabitation agreements;

• negotiating spousal support arrangements; and

• applications to establish, vary or terminate support.

Whether you are seeking spousal support or being asked to pay it, entitlement should be assessed before assumptions are made about the amount.

Bridgestone Law can help you understand your rights, assess the financial circumstances of your relationship and determine the appropriate next steps following separation.