Does Cheating Affect Spousal Support in Nova Scotia?

If your spouse had an affair, it is natural to feel that it should count when money is decided. Many people ask whether cheating means support is paid, increased, reduced or refused. The answer under the Divorce Act is different from what most people expect.

This article explains how spousal support orders are approached under the Divorce Act in Nova Scotia, why behaviour is left out, and where adultery does still play a role. It is general information, not advice on your situation.

This article covers the law of Nova Scotia.

The short answer: fault is not considered

When a court makes a spousal support order under the Divorce Act, it is told not to consider any misconduct of a spouse in relation to the marriage. An affair is the kind of conduct this covers. It does not make support more likely, and it does not remove a right to support.

This rule applies to support orders made under the Divorce Act. It does not mean that every kind of behaviour is irrelevant to every family law question. Parenting decisions, for example, follow a separate best-interests approach, and family violence is a listed factor there.

What the court looks at instead

In making a spousal support order, the court considers the condition, means, needs and other circumstances of each spouse, including the length of time they cohabited and the functions each performed during cohabitation.

In plain terms, the focus is on the practical financial picture. Some questions that tend to matter:

• How long did you live together?
• Who earned income, and who stayed home or reduced work to care for children or the household?
• What does each of you have and need now?
• How has the end of the relationship affected each person's finances?

The four goals of a support order

The Divorce Act also sets out what a spousal support order should try to do. It should:

• Recognize economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.
• Apportion between the spouses any financial consequences arising from the care of any child of the marriage.
• Relieve any economic hardship of the spouses arising from the breakdown.
• Promote the economic self-sufficiency of each spouse within a reasonable period of time.

None of these goals is about punishing or rewarding anyone. They are about fairness in how the marriage and its end affected each person financially. How these goals translate into an amount or length of time depends on the facts, and a lawyer can explain how that might apply to you.

Where adultery does matter: the divorce itself

A court may grant a divorce on the sole ground that the marriage has broken down. The usual way to show this is that the spouses have lived separate and apart for at least one year immediately before the divorce is determined.

There is an exception. Breakdown can also be shown without waiting a year if the other spouse has committed adultery, or has treated the applicant with physical or mental cruelty that makes continued living together intolerable.

Even so, many people still choose the one-year route, and the court must also be satisfied there has been no collusion in the divorce application. Which route suits you is worth discussing with a lawyer.

Where claims go and how payments are handled

Divorces are heard in the Supreme Court of Nova Scotia (Family Division), and all family law matters in the province are handled under Rule 59 of the Civil Procedure Rules. That court hears divorce, child support and parenting matters among others.

Once there is a court-ordered support payment, the Maintenance Enforcement Program (MEP) is a free Nova Scotia service that helps people pay or receive it. The payor sends money to MEP, which passes it to the recipient. Enrolling an order is optional, but MEP cannot enforce an order that is not enrolled.

What to do next

• Write down the dates you lived together, separated, and any periods you lived apart.
• Gather income records and a list of each spouse's major expenses and debts.
• Note who cared for children and who reduced work or career plans, and when.
• Do not build your support position around the affair; focus on finances and roles.
• Speak with a family lawyer before filing, especially if you are weighing the adultery route to divorce against waiting one year.

Frequently asked questions