Does Cheating Affect Spousal Support in British Columbia?

Finding out about an affair, or being accused of one, is painful. It is natural to ask whether the person who cheated should pay more, or whether the person who was hurt should get less or more.

In British Columbia, the law treats spousal support mainly as a financial question. This article explains how that works, where misconduct can matter in a narrow way, and what to focus on instead.

This article covers the law of British Columbia.

The short answer: fault is generally not considered

Under the Family Law Act, section 166, the court must not consider a spouse's misconduct, except conduct that arbitrarily or unreasonably causes, continues or worsens the need for support or affects the ability to pay. BC government guidance also says that who ended the relationship, or an affair, is not considered.

If you are married and seeking a divorce-related order, the Divorce Act is just as direct. The court cannot consider a spouse's misconduct in relation to the marriage when making a spousal support order.

So an affair does not by itself switch support on, switch it off, or raise or lower the amount.

What the court looks at instead

The Family Law Act sets four objectives for spousal support: recognizing the economic advantages or disadvantages arising from the relationship or its breakdown, sharing the financial consequences of child care beyond child support, relieving economic hardship from the breakdown, and promoting each spouse's economic self-sufficiency within a reasonable period of time.

The amount and duration, if any, are decided having regard to each spouse's condition, means, needs and other circumstances. These include how long the spouses lived together, the functions each performed during the relationship, and any agreement or order about support.

BC government guidance describes this as two steps: first whether the person is entitled, then how much and for how long.

• Did one spouse reduce work or give up opportunities for child care or the other spouse's career?
• Does either spouse face financial hardship because of the separation?
• What do each spouse's income and expenses look like?
• How long did the relationship last?

The narrow exception for conduct that affects money

The exception in section 166 is not about moral blame. It is about conduct that arbitrarily or unreasonably causes, continues or worsens the need for support, or that affects the ability to pay.

Whether conduct meets that standard depends on the facts. Hurt feelings or a breach of trust, however serious, are different from a financial effect on need or ability to pay. If you think the exception might apply, a lawyer can look at your specific facts.

Family Law Act and Divorce Act compared

Related points that come up with affairs

• Support can be claimed after the relationship has ended, because a spouse includes a former spouse.
• Spouses can be separated while still living in the same home, and a court may treat a communicated intention to separate permanently as evidence of separation.
• A support agreement can say when support changes or ends, for example on cohabitation or a new relationship, but a term that a spouse abstain from sexual relations after separation is not binding.
• A new relationship does not end support automatically. First look at the order or agreement, and the payor generally has to apply to change or end support.

What to do next

• Gather income information for both spouses, such as tax returns and pay records.
• Write down the dates the relationship began and ended, and when you started living apart.
• Collect any separation agreement or court order about support.
• Keep the focus on finances: child-care duties, lost opportunities, and current needs.
• Speak with a lawyer before assuming that an affair will help or hurt your position.

Frequently asked questions