Interim Spousal Support While Separating in Alberta

Right after separation, bills keep coming even if you have no income or very little. A final decision on spousal support can take a long time, so many people ask whether the court can order something temporary in the meantime.

It can. This article explains the two main legal routes in Alberta, what the court considers, and what to gather so your request is easy to understand.

This article covers the law of Alberta.

What interim support is

Interim support is a temporary order that applies while the main support application is waiting to be decided. Under the Divorce Act, the court may make an interim spousal support order pending determination of the main application. Under Alberta's Family Law Act, the court may make an interim order pending determination of an application.

The main application is the request the interim order sits in front of. Under the Divorce Act, a court may order one spouse to secure or pay, or secure and pay, lump-sum or periodic spousal support. A spousal support order may be for a definite or indefinite period or until a specified event occurs, and may carry terms, conditions or restrictions the court thinks fit and just.

Which law applies to you

Divorce Act corollary relief is heard by the Court of King's Bench. Family Law Act support applications may also go to the Alberta Court of Justice.

To be an adult interdependent partner, you generally need to have lived in a relationship of interdependence for at least 3 continuous years, or for some permanence if there is a child of the relationship, or have signed an adult interdependent partner agreement. Related persons can qualify only by agreement.

Conditions and factors the court considers

Under the Family Law Act, a support order may be made only if you have a declaration of irreconcilability, are living separate and apart, are not living apart but are in discord and cannot reasonably be expected to live together, or one person has without sufficient cause refused or neglected to provide necessaries. A declaration of irreconcilability is one route to qualify.

An interim order must follow the usual factors and objectives as far as practicable given the need for interim support. Those factors include each person's conditions, means, needs and circumstances, the length of cohabitation, the functions each performed, and any existing support order or arrangement. Under the Divorce Act, the court looks at similar matters.

• Objectives include recognizing economic advantages or disadvantages from the relationship or its breakdown, and relieving economic hardship.
• Under the Divorce Act, misconduct in the marriage is not considered.
• Under the Family Law Act, misconduct is generally not considered, except conduct that arbitrarily or unreasonably precipitates, prolongs or aggravates the need for support or unreasonably affects the payer's ability to pay.

Children, guidelines and entitlement

If child support and spousal support are both claimed, the court gives priority to child support. Under the Divorce Act, if that results in reduced or no spousal support, the court must record its reasons, and a later reduction in child support can support a new application.

The Spousal Support Advisory Guidelines are not law, but judges often base spousal support decisions on them. They do not decide entitlement. Entitlement must be established first, and an income gap alone is not enough. After a short marriage with limited financial interdependence, courts have found no entitlement in some cases.

The guidelines describe different kinds of entitlement. Compensatory support responds to economic loss or disadvantage from marital roles, such as child care or supporting a spouse's career. Non-compensatory support responds to need or a drop in the marital standard of living, and contractual support arises from agreements. Which kind fits your situation affects how a request is framed, so it is worth talking through with a lawyer.

Changing or ending support later

An interim order is not necessarily the end of the story. What happens next depends on the final order, any agreement and your circumstances, so the points below are only a general guide.

• Under the Divorce Act, a court may vary, rescind or suspend a spousal support order, retroactively or prospectively. Before doing so it must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the order.
• Under the Family Law Act, the court may vary, suspend or terminate a support order, and the ground for spousal or partner support is a change in the condition, means, needs or other circumstances of either party.
• A spousal or partner support agreement cannot vary an existing support order under the Family Law Act.
• Unless the court orders otherwise, a Family Law Act support order ends on the death of the person receiving support, and arrears owing before then are not affected.
• A new relationship for the recipient is a complicating factor rather than an automatic end to support.

What to do next

• Write out your monthly living expenses and what you can currently pay.
• Gather recent income records for yourself and, if you can, your spouse or partner.
• Note the dates you lived together and separated, and who did what at home and in each career.
• Record any existing support arrangement and whether children are involved.
• Speak to a lawyer promptly about which court and forms apply to you.

Support is generally collected through the Maintenance Enforcement Program unless the parties agree or the court orders otherwise.

Frequently asked questions