Interim Spousal Support in Alberta: Getting Support Before Trial

Separation can leave one spouse without income almost overnight, while a final support decision may be a long way off. Rent, food and bills do not wait for a trial, so many people ask whether support can start sooner.

In Alberta it can. This article explains where interim spousal support comes from, what the court generally considers, how it differs from a final order, and what to do if you need support now. It is general information, not advice about your own case.

This article covers the law of Alberta.

What interim spousal support is

Interim support is a temporary order that lasts until the court decides the main support application. Under the federal Divorce Act, the court may make an interim spousal support order pending the determination of the main application. Alberta's Family Law Act has a similar power: the court may make an interim order pending determination of an application.

The point is to bridge the gap. It does not decide whether you are entitled to support in the long run, and it does not settle the amount or length of a final order.

Which law applies to you

Which statute you use depends on your relationship. The Divorce Act covers married couples seeking a divorce, and its term spouse includes a former spouse. Married spouses who are not seeking a divorce can still claim spousal support under the Family Law Act, and unmarried partners cannot use the Divorce Act.

Unmarried partners must first qualify as adult interdependent partners. Generally that means a relationship of interdependence for a continuous period of at least 3 years, or some permanence if there is a child of the relationship, or a signed adult interdependent partner agreement. Having a child together does not in itself give rise to entitlement.

Under the Family Law Act, a support order may be made only if certain conditions are met. Examples are that the parties are living separate and apart, or have a declaration of irreconcilability. A declaration of irreconcilability is a court finding that there is no prospect of reconciliation.

What the court looks at

An interim order is not made on a guess. Under the Family Law Act, an interim support order must follow the usual factors and objectives, to the extent practicable given the need for interim support. Those factors include each party's conditions, means, needs and other circumstances, such as how long they lived together and the functions each performed.

The Divorce Act also directs the court to each spouse's condition, means, needs and other circumstances, and to any existing order, agreement or arrangement about support. In practice, that means you should be ready to show the following:

• Your income, or the fact that you have none, and your current expenses.
• The other spouse's income and ability to pay.
• How long you lived together and who did what in the household, including child care and supporting the other's career.
• Any existing agreement, order or informal arrangement about support.
• Whether anyone else in either household contributes to expenses.

The objectives include recognizing economic advantages or disadvantages from the relationship or its breakdown, relieving economic hardship from the breakdown, and promoting each person's self-sufficiency within a reasonable time. A gap in income alone is not enough to establish entitlement.

Misconduct is treated differently by each law. The Divorce Act says the court shall not consider misconduct in relation to the marriage. The Family Law Act generally does not either, but it makes exceptions for conduct that arbitrarily or unreasonably causes, prolongs or worsens the need for support, or unreasonably affects the payer's ability to pay.

How interim support differs from a final order

• Timing: an interim order applies while the main application is pending.
• Duration: a final Divorce Act order may be for a definite or indefinite period, or until a specified event, and may carry conditions.
• Change: a final order can later be varied, rescinded or suspended if there is a change in either person's condition, means, needs or circumstances.

If child support is also claimed, the court gives priority to child support. That can reduce or even eliminate spousal support, and under the Divorce Act the court must record its reasons if it does.

The Spousal Support Advisory Guidelines are not law, but judges often base spousal support decisions on them. They do not decide entitlement, which must be established first. How they apply to an interim order in your case is something a lawyer can confirm.

What to do next

If you need support now, act early rather than waiting for the other spouse to offer it. Interim support is something you ask the court for, so being organized helps.

• Gather recent pay stubs, tax returns, bank statements and proof of your monthly expenses.
• Collect whatever you can on the other spouse's income, such as past tax returns.
• Write down the date you separated and the history of the relationship, including child care and career sacrifices.
• Note any child support claim, since it comes first.
• Keep copies of any agreements or earlier support arrangements.
• Speak with a family lawyer about which court and which steps fit your situation.

Where support is ordered, the Maintenance Enforcement Program collects and enforces payments unless the parties agree or the court orders otherwise. A support agreement cannot change an existing support order under the Family Law Act, so get advice before signing anything that touches an order.

Frequently asked questions