Can I Get Interim Spousal Support in British Columbia?

Separation can leave one person with the bills and no income to cover them. Waiting for a trial can take a long time, so many people ask whether the court can order support in the meantime.

It can. This article explains what interim spousal support is, where the power comes from, what the court looks at and what to watch for on timing.

This article covers the law of British Columbia.

What interim spousal support is

Interim support is a temporary order that applies until a final decision is made. Under the Family Law Act, a court may make an interim order for the relief sought on any application under the Act.

For married spouses seeking a divorce-related order, the Divorce Act allows the court to make an interim order requiring a spouse to secure or pay support while an application for spousal support is pending. Unmarried partners claim spousal support under the Family Law Act, not the Divorce Act.

Who can claim

You must be a spouse. Under the Family Law Act, that means you are married, or have lived with someone in a marriage-like relationship for a continuous period of at least 2 years. For spousal support only, an unmarried partner who has not reached 2 years can still qualify if the couple has a child together.

Spouses can be separated while still living in the same home, and a court may treat a communication of intent to separate permanently, or an action showing that intent, as evidence of separation.

What the court looks at

An interim order must as far as practicable follow the requirements for a final order. For a final decision, BC government guidance describes two steps: first whether you are entitled to support, then how much and for how long, with possible outcomes of no support, a lump sum, or regular payments for a set period. How closely an interim decision follows those steps depends on your situation, so it is worth confirming with a lawyer.

• Each spouse's condition, means, needs and other circumstances, including how long you lived together, the roles each of you performed and any agreement or order about support.
• The objectives of support, such as economic advantages or disadvantages from the relationship, child-care consequences, hardship from the breakdown and each spouse's self-sufficiency within a reasonable time.
• Fault is generally irrelevant. Misconduct is not considered, except conduct that arbitrarily or unreasonably causes, continues or worsens the need for support or affects ability to pay.

Lawyers and judges often use the Spousal Support Advisory Guidelines to help set an amount, but they are not law. They do not decide entitlement.

In short marriages, the guidelines' user guide notes an interim exception for compelling financial circumstances, where interim support may be ordered even though final support might be limited.

Timing, speed and deadlines

How quickly a hearing can be scheduled depends on the court, the complexity of the issues and the paperwork involved, so a lawyer can give a realistic sense for your situation.

Deadlines matter more than speed. A spousal support proceeding under the Family Law Act must be started within 2 years after the date of separation for spouses in a marriage-like relationship, or within 2 years after a divorce judgment for married spouses. The limit pauses while spouses are in family dispute resolution with a professional or in a prescribed process. The Divorce Act, by contrast, has no time limit in section 15.2 for a married or formerly married spouse to apply for spousal support, although delay can still be considered as a factor.

If you signed a witnessed written spousal support agreement under section 164 of the Family Law Act, a court cannot make a section 165 support order while that agreement stands unless it is set aside. It can be set aside or replaced only on specified grounds, such as nondisclosure of income, property or debts, or if it is significantly unfair. How this affects an interim request depends on your situation, so it is worth confirming with a lawyer.

After an interim order is made

An interim order is not permanent. A party may ask to change, suspend or end it based on a change in circumstances or substantial new evidence.

Support paid under a court order or written agreement may be deductible to the payer and taxable to the recipient. Without an order or written agreement, the tax rules do not apply.

What to do next

• Write down the date you separated and how you can show it.
• Collect income records, tax returns, pay stubs and a list of monthly expenses for both households, as far as you can.
• Note any agreement or earlier order about support.
• Speak with a lawyer early about the right application and the time limits.
• Keep communication with your ex calm and in writing.

Frequently asked questions