Family Law In British Columbia
There is no such thing as a “legal separation.” If you’re married or in a common-law relationship, you become separated as soon as you and your spouse start living apart with at least one of you wanting to separate. You don’t need your spouse’s permission to start living separately. You can tell others that you wish to separate, but you don’t have to see a lawyer, sign a document, or go to court to be separated.
You might even still live in the same house to save money, but you’re usually still considered separated if you don’t share things like meals, a bedroom, and social activities.
If you’re married, you’ll be legally married until you get a court order for divorce. You don’t need your spouse’s permission to apply for a divorce. If you weren’t married to each other, a divorce isn’t necessary.
Note that there are important time limits if you want to apply for spousal support and/or divide property, debt, or a pension. See our fact sheets Spousal support and How to divide property and debts.
What to take with you if you leave
Here are some of the important documents and items you should take with you:
- Your financial information, such as your tax returns for at least three years; plus bank account, credit card, investment, and debt statements; and copies of recent pay stubs
- Your BC Services Card/CareCard (medicare card)
- Your marriage certificate (if you were married)
- Your passport, your children’s passports, and any other immigration papers you may have
- Your status card and identification
- Your children’s birth certificates and BC Services Cards/CareCards (medicare cards)
- Your clothing and personal belongings and those of your children
- If possible, photocopies of information about income and assets in your spouse’s name alone, such as pay stubs, tax returns, company records and ledgers, bank accounts, investments, and RRSPs. Also write down your spouse’s Social Insurance Number, BC Services Card/CareCard number, and date of birth. (These can be useful later if you have a dispute about money and property, or if you need to find your spouse.)
- Medications and prescriptions for you and your children
Many separating couples can agree about how they’re going to deal with parenting, property, and child and spousal support without ever going to court. If you and your spouse or partner can come to an agreement, you’ll save yourselves time, money, and emotional turmoil, as well as keep control of important decisions that affect your family. This is often called a separation agreement, and agreements about parenting are sometimes called parenting plans. (The provincial Family Law Act, however, only uses the term “agreements.”)
For more information about agreements, see our fact sheets Making an agreement after you separate and Who can help you reach an agreement? For information on drafting a legally binding separation agreement, see our self-help guide How to write your own separation agreement.
Spousal support (also called maintenance) is financial support to help with living expenses paid to a former spouse under an agreement or court order. You can apply for spousal support if:
- you were married,
- you lived together in a marriage-like relationship for at least two years, or
- you lived in a marriage-like relationship for less than two years and have a child together.
When should spousal support be paid?
Under provincial and federal laws, spousal support is intended to:
- recognize any financial advantages or disadvantages a spouse may face because of the relationship or the separation;
- make sure neither spouse faces economic hardship as a result of the breakup;
- make both spouses share the financial burden if there were consequences to caring for the children during the relationship; and
- if possible, help each spouse become financially independent within a reasonable amount of time.
Consider these reasons when you apply or have to pay for spousal support.
How do I figure out the amount of support?
How much spousal support you should get and how long it will last depends on the following:
- If you worked outside the home during the marriage or relationship
- How long you lived with your spouse
- If you’re able to support yourself
- If you are or were at home with the children
- Whether you earn a lot less than your spouse
- If the spouse being asked to pay is able to pay
The Spousal Support Advisory Guidelines can help you figure out the amount of spousal support that should be paid. These guidelines aren’t the law (neither you or the judge has to follow them), but if your case went to court, the judge or master would probably look at the guidelines to help make his or her decision about the amount of spousal support. The guidelines take into account the income of both spouses, how long you were married, and whether you have children.
For more information, see the Department of Justice website on spousal support.
Tip: MySupportCalculator.ca is a website with a support calculator that can provide you with a “ballpark” number that you can adjust based on your circumstances. Because the calculations are complicated, you may want to get a lawyer with the right software to help with a more accurate calculation. (The Legal Services Society doesn’t claim these figures are precise or accurate nor does it endorse the lawyers listed on this site.)
Can I reach an agreement without going to court?
Many couples come to an agreement about spousal support without going to court. Agreements that are filed with the court can be enforced — they have the same force as a court order. They can also be set aside (cancelled) if the situation changes.
If you’re trying to negotiate an agreement, consider the factors listed under When should spousal support be paid? (above) and the amount of support listed in the Spousal Support Advisory Guidelines. Get advice from a lawyer about what is fair.
Tip: For information on drafting a legally binding separation agreement, see our self-help guide How to write your own separation agreement. If you want help negotiating an agreement, see our fact sheets Making an agreement after you separate and Who can help you reach an agreement?.
Applying for spousal support
If you and your spouse can’t come to an agreement, one of you can apply to the court for an order for spousal support. Court applications can be expensive and time-consuming, so see a lawyer for advice about whether what you’re expecting is reasonable. To find out more about orders, see our fact sheet All about court orders. (This fact sheet contains links to our step-by-step guides on How to get a final family order and How to get an interim family order.)
Providing financial information (disclosure)
When one spouse applies for spousal support, both spouses will have to provide financial information to each other and to the court. You will have to share detailed documents showing your income, assets, and debt. Both Supreme and Provincial Court have rules setting out exactly what needs to be shared and when.
Be aware that the law requires you to provide “full and true” information to the other party, whether you’re negotiating an agreement or making or responding to a court application. There can be serious consequences if you don’t. There may be financial penalties, and the court could make changes to your agreement or order.
In the Supreme Court, both parties must fill out a Financial Statement (Form F8) and file it with the court for orders related to support. For help, see our guide How to deal with a Supreme Court Financial Statement.
In the Provincial Court, both parties must fill out and file a Financial Statement (Form 4). For help, see our guide How to deal with a Provincial Court Financial Statement. However, if you agree about the amount of your incomes and how much support should be paid, you can instead fill out a Consent form (Form 19) and file it along with copies of your most recent income tax returns and notices of assessment.
How long will spousal support last?
Spousal support agreements or orders are often for a limited period of time, possibly just a few years. Longer relationships can lead to longer periods of support. But the law still expects people to support themselves as soon as reasonably possible after a divorce or separation.
A spousal support agreement or order can say that spousal support will automatically be reviewed after a certain amount of time has passed. It’s a good idea to have this process built in because circumstances often change over the years.
If you need to extend spousal support and don’t have this automatic review process as part of your order or agreement, apply before the end of the time limit stated in the court order or agreement. It’s a good idea to get a lawyer’s help. (See Who can help? to find a lawyer.)
Time limits for applying for support
There are two laws that deal with spousal support: the Family Law Act (a provincial law) and the Divorce Act (a federal law). If you weren’t married to the other party, your spousal support order will be based on the Family Law Act. If you were married and are now separated or divorced, the order can be based on either of the two laws. For more information, see our fact sheet Which laws apply to your case?
If you are applying under the Family Law Act, you must apply for spousal support no later than two years after getting an order for a divorce or annulment. If you were living in a marriage-like relationship for at least two years (sometimes referred to as a common-law relationship) or living together for less than two years but had a child together, you must apply within two years of the date on which you separated.
There is no time limit under the Divorce Act.
Can I enforce the agreement or order?
Once you have an agreement or order for spousal support, you can enroll in the BC Family Maintenance Enforcement Program (FMEP). This government program will monitor the spousal support payments you should be receiving. Staff in the program will take action to help you get the payments if you’re not receiving them.
Can I change the agreement or order?
If you have a spousal support agreement, you can apply to set aside (cancel) part of the agreement or replace the agreement with a court order if:
- one of you didn’t share accurate information about your finances,
- one of you took advantage of the other’s vulnerability, or
- one of you doesn’t understand the agreement.
You can also apply to change the agreement if the agreement itself is “significantly unfair.” The court will consider:
- if your or your spouse’s circumstances have changed,
- how long it’s been since the agreement was made,
- whether (and to what extent) you both intended this agreement to be final,
- how much you both rely on the agreement, and
- how much the agreement meets the goals of spousal support in the Family Law Act.
If you have a spousal support order, there are cases where you can apply to have it changed. Sometimes there is a change in the “condition, means, need or other circumstances of either spouse”; for example:
- one of you gets a raise or cut in pay (if you weren’t told about the other spouse’s increased income, a court can order an increase/decrease of spousal support back to the date of the raise),
- the paying spouse becomes unemployed or disabled and can’t pay,
- one of you gets remarried and has increased household income from the new spouse, and
one of you gets a financial windfall.
You can also apply to change the order if either spouse didn’t provide important financial information. In fact, you can apply to change either a spousal support agreement or order if you now have important information that wasn’t available when the agreement or order was made.
How do income tax rules affect spousal support payments?
Certain income tax rules apply when you separate or divorce. See the Tax Matters Toolkit, a two-part online resource from the Canadian Bar Association that explains the tax rules for a number of topics, including spousal support.
Cancelling or reducing arrears
Arrears are past support payments that haven’t been paid. While the law does allow a judge or master to reduce or cancel arrears, it’s difficult to do unless there’s a very good reason for the change.