- Spousal support is decided in two steps: whether you are entitled, and then how much and for how long.
- When the recipient has primary care of dependent children and child support is paid, the guidelines use a different formula based on net incomes.
- Under post-April 1997 orders, child support is not deductible or taxable, while spousal support under an order or written agreement generally is.
If you are raising children after a separation, you may be asking for two kinds of support at once. They have different purposes and are worked out differently, which can be confusing, especially when one affects the other.
This article explains how child support and spousal support fit together in British Columbia, how child support changes the spousal support calculation, and how each is treated for tax. It is general information, not advice about your situation.
This article covers the law of British Columbia.
Two different kinds of support
Child support is for the children. Spousal support is between the spouses. They can be ordered at the same time, and the law recognizes that child care can affect spousal support: one of the objectives in the Family Law Act is to apportion between spouses the financial consequences of child care beyond child support.
Who can claim spousal support in British Columbia is wider than many people expect.
- A person is a spouse if married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years.
- An unmarried partner with less than 2 years of marriage-like cohabitation can still qualify for spousal support if the couple has a child together, but that child alternative does not apply to property or pension division.
- A spouse includes a former spouse, so you can claim after the relationship has ended.
- Unmarried partners claim spousal support under the Family Law Act, not the Divorce Act.
How spousal support is decided
BC government guidance describes two steps: first whether the person is entitled to support, then how much and for how long. Child-care duties that limited someone's work are one example of what can support entitlement.
The amount and duration must take into account each spouse's condition, means, needs and other circumstances, including how long the spouses lived together, the functions each performed during the relationship, and any agreement or order about support. Fault is generally not considered, with limited exceptions for conduct that arbitrarily or unreasonably causes, continues or worsens the need for support or affects ability to pay.
How child support changes the guideline amount
The Spousal Support Advisory Guidelines are not law, but most lawyers and judges use them to help set the amount. They are advisory only and do not decide entitlement, which must be established first under the Family Law Act or Divorce Act. Which formula applies depends on whether children are involved.
| Without child support | With child support | |
|---|---|---|
| When used | No dependent children | Recipient has primary care of dependent children and child support is paid |
| Based on | Gross income difference | Net incomes |
| Amount | 1.5% to 2% of the income difference per year of marriage, up to 50% | Lower-income recipient receives 40% to 46% of combined net disposable income |
| Duration | 0.5 to 1 year per year of marriage, but indefinite if the marriage is 20 years or longer, or lasts at least 5 years and the years of marriage plus the recipient's age at separation total 65 or more | Soft limits; initial orders generally indefinite |
The with-child-support calculation requires software, and a lawyer usually does it, while MySupportCalculator.ca gives a rough estimate. Results are ranges rather than guaranteed entitlements, and courts can depart from them.
Tax treatment is different
Child support under post-April 1997 orders is not deductible by the payer or taxable to the recipient. Spousal support is treated differently when it is paid under a court order or written agreement: the payer reports the total on line 21999 and claims the deductible part on line 22000, and the order or agreement must be registered with the CRA. The recipient reports taxable support on lines 12799 and 12800.
If there is no court order or written agreement, these tax rules do not apply, so the payer cannot deduct the payments and the recipient does not report them. Legal and accounting fees for separation, divorce, or setting or contesting support are not deductible on those lines. A payer who makes a lump-sum payment of $3,000 or more to bring support payments up to date, and who can deduct it, must give the recipient Form T1198 when it is reportable income to the recipient. How a payment that covers both child and spousal support is treated depends on your situation, so it is worth confirming with an accountant.
What to do next
- Gather income information for both parents, including tax returns and pay records.
- Write down who has primary care of the children and the parenting schedule.
- Note the dates you started living together, married and separated, because length of relationship affects amount and duration.
- Ask a lawyer to run the guideline calculation with the correct formula.
- Make sure any agreement is in writing and ask an accountant how the payments will be reported.
Frequently asked questions
Can I receive child support and spousal support at the same time?
Yes, they are separate claims and can be ordered together. The guidelines even have a separate formula for cases where the recipient has primary care of dependent children and child support is paid.
Does child support reduce spousal support?
The guidelines use a different formula when child support is paid, based on net incomes, so the result can differ from the formula used without children. The actual outcome depends on incomes and other circumstances, so it is worth having a lawyer calculate it.
Is spousal support taxable like child support?
No. Child support under post-April 1997 orders is not deductible or taxable. Spousal support paid under a court order or written agreement is generally deductible for the payer and reported by the recipient.
Can unmarried parents claim spousal support in BC?
Yes. Unmarried partners claim under the Family Law Act, not the Divorce Act. If you lived together less than 2 years but have a child together, you can still qualify as a spouse for spousal support.
Sources
- Family Law Act, SBC 2011, c 25, s. 3(1) — bclaws.gov.bc.ca
- Divorce Act, RSC 1985, c 3 (2nd Supp), s. 2(1) — Justice Laws (federal)
- Family Law Act, s. 161 — bclaws.gov.bc.ca
- Province of BC – How is spousal support decided? — www2.gov.bc.ca
- Department of Justice Canada – Spousal Support Advisory Guidelines (July 2008), Executive Summary — justice.gc.ca
- Department of Justice Canada – SSAG Revised User's Guide (2016) — justice.gc.ca
- CRA – Lines 21999 and 22000 Support payments made — canada.ca
- CRA – Support payments — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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