Does Cheating or Misconduct Affect Spousal Support in Alberta?

Many people assume that an affair or bad behaviour will raise, lower or cancel spousal support. It is a natural thought: if one person ended the relationship badly, surely that should count. The answer in Alberta is mostly no, but the details depend on which law applies to you.

This article explains the two rules, the narrow exception that exists under Alberta's own legislation, and what courts look at instead. It is general information, not advice on your situation.

This article covers the law of Alberta.

Which law applies to you

Alberta has two main sources of spousal support law, and they cover different groups. The federal Divorce Act applies to married couples seeking a divorce, and its idea of a spouse includes a former spouse. Alberta's Family Law Act covers married spouses who are not seeking a divorce, and unmarried partners cannot use the Divorce Act at all.

Under the Family Law Act, spouses and adult interdependent partners each have an obligation to provide support for the other, but that obligation is subject to the rules in Division 2 of the Act. One of those rules says a support order can be made only if the parties have a declaration of irreconcilability, are living separate and apart, are in discord and cannot reasonably be expected to live together, or one has without sufficient cause refused or neglected to provide necessaries. An adult interdependent partner is generally someone who has lived with another person in a relationship of interdependence for at least 3 continuous years, or for some permanence if there is a child of the relationship, or who has signed an adult interdependent partner agreement.

Divorce Act: misconduct is off the table

When a court makes a spousal support order under the Divorce Act, it shall not take into consideration any misconduct of a spouse in relation to the marriage. That means an affair, on its own, does not increase or reduce what is ordered.

This rule has no built-in exception in the Divorce Act, unlike the Alberta statute described below. If a spousal support order is later varied, the court must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the order, and must take that change into consideration.

Family Law Act: a narrow exception

The Family Law Act also starts from the position that misconduct is generally not considered. It carves out conduct that arbitrarily or unreasonably precipitates, prolongs or aggravates the need for support, or that unreasonably affects the payer's ability to pay.

Notice what this exception is about. It is not a penalty for being unfaithful. It looks at conduct that actually drives up the need for support or reduces the ability to pay it, and the conduct must be arbitrary or unreasonable. Whether something meets that description depends on the facts, and a lawyer can help you assess it.

• An affair that has no effect on need or ability to pay is generally not the kind of conduct this section reaches.
• Conduct that unreasonably reduces the payer's ability to pay can be considered.
• Conduct that arbitrarily or unreasonably prolongs the other person's need for support can be considered.

What courts weigh instead

Under the Divorce Act, the court considers the condition, means, needs and other circumstances of each spouse, including how long they cohabited, the functions each performed during that time, and any order, agreement or arrangement about support. The Family Law Act lists much the same factors, and adds the payer's legal obligation to support another person and the extent to which others living with the payer or the recipient contribute to household expenses.

The law also sets objectives. These include recognizing economic advantages or disadvantages from the relationship or its breakdown, apportioning the financial consequences of child care beyond child support, relieving economic hardship, and, so far as practicable, promoting each person's economic self-sufficiency within a reasonable time.

Entitlement also has to be shown before amounts are discussed. The Spousal Support Advisory Guidelines are not law, but judges often base decisions on them. They do not decide entitlement: it must be established first, and an income gap alone is not enough. Entitlement may be compensatory (economic loss from roles such as child care), non-compensatory (need or a drop in standard of living) or contractual (arising from an agreement).

A new partner is not misconduct

Moving in with someone new is often confused with misconduct. Under the Family Law Act, others living with either person count as a household-contribution factor when support is set, and as a possible change of circumstances if support is later varied. Repartnering does not automatically end support, and the outcome depends on the order, any agreement and whether a change is shown.

This article does not cover family violence; if that is part of your situation, how the law treats it depends on the facts, so it is worth confirming with a lawyer. This one deals only with ordinary marital or relationship conduct such as infidelity.

What to do next

• Work out which law applies: married and divorcing, married and not divorcing, or unmarried adult interdependent partners.
• Gather financial records for both of you: incomes, expenses and debts.
• Write down the history of roles, such as who cared for children or supported the other's career, and how long you lived together.
• Keep any existing order or agreement about support, since the court considers it.
• Speak to a lawyer if you think conduct has driven up your need for support or reduced the payer's ability to pay.

Frequently asked questions