We have moved

Spousal Support

Spousal support is the money paid by one spouse to the other. Support is also sometimes called maintenance or alimony.

According to the Domestic Relations Act, “spouse” is defined as:
* two people who are legally married or
* two people who have lived in a conjugal (sexual) relationship for 3 years or more, or
* two people who are living in a conjugal (sexual) relationship and are the natural or adoptive parents of a child or children.

The law says that you must try to support yourself after a separation or divorce. But, if one of you is unable to support yourself or will suffer a big drop in income or standard of living as a result of the separation, a claim for spousal support may be made.

Spousal support can be ordered:
* while you retrain;
* while you find a job;
* while you stay home to care for young children;
* if you were damaged by the relationship (as in some abuse situations);
* if you are disabled and cannot work;
* if you are too old to retrain for work.

Spousal Support Advisory Guidelines

The “Spousal Support Advisory Guidelines” may be used to determine how much spousal support is paid and for how long. These guidelines are not law, but advisory. They are considered by the courts when deciding on spousal support.

There are different formulas used for different situations, such as whether or not there are dependent children, how long you were together, and other factors. More information about these Guidelines is available at the website of the Department of Justice Canada (www.justice.gc.ca). At this site, do a search for “Spousal Support Advisory Guidelines”.

Determining Spousal Support

A spouse may be entitled to support even if he or she is working - this depends upon the history of the relationship between the spouses. The judge will look at:
* how long the spouses have lived together;
* what role each spouse played in the marriage (e.g., one spouse was a full-time
homemaker);
* whether one spouse will suffer financial hardship because of the marriage breakdown.

If your circumstances make it unreasonable to expect you to become self-supporting, or if your income is much lower than the other spouse’s after separation, you may be able to get support for a period of time or even indefinitely.

Spousal support will only be awarded:
* if you are entitled to it;
* if the other person can afford to pay it; and
* after child support has been considered.

Taxes

At income tax time, spousal support can be deducted from the income of the person who pays it and must be added to the income of the person who receives it.

If you have an order that includes both child and spousal support, payments go first towards child support. This means that a paying parent will not get a tax deduction for spousal support until child support is fully paid.

Family support orders usually state how much is for spousal support and how much is for child support. If your support order does not specify this, it is assumed that everything paid is for child support.

Obtaining Spousal Support

There are two ways to get spousal support:

* Out of Court Agreement;
* Court Order

Out of Court Agreement
If you can agree on the amount to be paid and the conditions, a written agreement can be reached and signed out-of-court.

Out-of-court settlements can be done through mediation or through a collaborative law
process in which you meet in face-to-face discussions with your spouse. With the help of a neutral mediator or collaborative lawyer, you negotiate to reach an agreement that is acceptable to both of you. If these processes work, it can save time and money, create less stress for the family, and keep your dispute more private than going to court. It allows you to create your own solutions. Mediation or collaborative law can help you work out an agreement that keeps everyone's best interests in mind. This is particularly beneficial if you have children.

To be legally binding, your agreement must be signed by both of you and witnessed. You should have a lawyer check your agreement to make sure it is correct and complete. If your spouse's lawyer wrote the agreement, you should have your own lawyer look at it before you sign it.

You can register your agreement with the Maintenance Enforcement office. If payments are not made according to the schedule, the Maintenance Enforcement office will take steps to enforce your agreement.

Court Order
You can make an application to have a hearing in Family Court. It is a good idea to get help from a lawyer to be sure that your interests are being looked after and the necessary papers are properly prepared.

Any order or agreement should be carefully looked at before you sign it. A signed
agreement for support is a binding contract.

The PEI Family Law Act states that you must make a claim for spousal support within two years from the date you separate.

If your claim is part of a divorce application, your case falls under the federal Divorce Act. There are no time limits under the Divorce Act for applying for spousal support.

Changing Spousal Support

You can change an agreement or order if you both agree to the changes and put those changes in writing.

If you can't agree, you or your spouse can apply to the Court for a change or variation to this order or agreement. For a variation to be granted, a significant change must have occurred in your, or your spouse's, financial situation. If you are not divorced, at least six months must have passed since your last agreement or order was made. If you are divorced, the six-month time restriction does not apply and you can reapply for spousal support or apply for a variation of your spousal support under the Divorce Act if:

* your first application for spousal support was denied or reduced in favor of child support; and
* your child support is now reduced or stopped.

It is a good idea to speak to a lawyer if you think you are eligible for spousal support. If your spouse will not agree to pay spousal support, you may need to take your case to court to get it ordered by a judge. Informing yourself about the Spousal Support Advisory Guidelines and talking to your lawyer about using these in your application may be a good plan. If you do not know a lawyer, call the Lawyer Referral Service at 902-892-0853 or 1-800-240-9798. A short consultation with a lawyer for a modest fee is available through this service. If required, further time with the lawyer will be charged at a rate that you both agree to.

More Information

If you need legal information, contact Community Legal Information Association of PEI:
www.cliapei.ca, clia@cliapei,ca or call 902-892-0853 or 1-800-240-9798.

If you need tax information, call Canada Revenue Agency at 1-800-959-8281.

For more information on collaborative law, go to the website www.cppei.ca or visit
www.cliapei.ca for a copy of the pamphlet, “Resolving Conflict Outside of Court”.

Credits

This pamphlet was published by Community Legal Information Association of Prince Edward Island Inc. (CLIA) for information and education purposes only. It contains general information about the law. It does not contain a complete statement of the law in this area and is not a substitute for legal advice. If you need legal advice contact a lawyer. If you do not know a lawyer, you may contact one through the Lawyer Referral Service (902-892-0853 or 1-800-240-9798). A short appointment with a lawyer through this service will cost you a modest fee.

Community Legal Information Association of PEI, Inc. (CLIA) is a charitable organization
that receives funding from the Department of Justice Canada, the PEI Department of Justice and Public Safety, the Law Foundation of PEI, the Law Society of PEI, and other sources. CLIA provides Islanders with understandable and useful information about the law and the justice system in Prince Edward Island.

For more information, you can visit our website at www.cliapei.ca or email us at
clia@cliapei.ca . You can also find us at: www.facebook.com/CLIAPEI,
www.twitter.com/CLIAPEI and www.youtube.com/CLIAPEI. You can telephone CLIA at
902-892-0853 or 1-800-240-9798.

You may support CLIA by volunteering, becoming a member or making a donation.

Noncommercial reproduction of this document is encouraged.
Charitable registration number: 118870757RR0001
ISBN: 978-1-894267-83-0

Revised August 2014

 

Are you looking for information on:




Support CLIA:

Donate Now Through CanadaHelps.org! Faire un don maintenant par CanadaHelps.org!

  Visiting / Mailing Address

Community Legal Information Association
of Prince Edward Island (CLIA PEI)

Royalty Centre, Room 111
40 Enman Crescent
Charlottetown, PE  C1E 1E6
Canada
Map / directions

  Email Address

  Telephone

Toll free (Atlantic Canada)
1 (800) 240-9798
... or ...
(902) 892-0853

  Important Note

CLIA provides an anonymous, confidential service.  We will not share your information and you do not have to use your real name in communication with us.