Can I Get Spousal Support After an Affair or Fault in BC?

If your spouse had an affair, it is natural to feel that it should matter. If you were the one who left, you may worry it will cost you support. Many people expect spousal support to work like a penalty or a reward.

In British Columbia it largely does not. Support is about the finances of the relationship and its breakdown, not about who behaved badly. This article explains the rule, its narrow exception, and what the court looks at instead.

This article covers the law of British Columbia.

The general rule: fault is not relevant

Under section 166 of the Family Law Act, the court must not consider a spouse's misconduct when dealing with spousal support, except in a narrow situation described below. BC government guidance says that who ended the relationship, or an affair, is not considered.

That means an affair does not by itself increase or reduce support. Leaving the relationship does not by itself cost you a claim.

The narrow exception

The exception covers conduct that arbitrarily or unreasonably causes, continues or worsens the need for support, or that affects ability to pay. The focus is on the financial effect of the conduct, not on its moral character.

Whether particular conduct falls within this exception depends on the facts, and it is worth discussing with a lawyer.

If you are married and divorcing

Married spouses seeking a divorce-related order may apply under the Divorce Act. It says the court cannot consider misconduct of a spouse in relation to the marriage when making a spousal support order. Unmarried partners in BC claim spousal support under the Family Law Act, not the Divorce Act.

What the court looks at instead

The court looks at each spouse's condition, means, needs and other circumstances, including how long the spouses lived together, the functions each performed during the relationship, and any agreement or order about support.

The objectives of support are also financial. They include recognizing economic advantages or disadvantages from the relationship or its breakdown, apportioning the financial consequences of child care, relieving hardship, and promoting each spouse's self-sufficiency within a reasonable period of time.

• Needs and means of each spouse.
• Length of the relationship.
• Roles each person had, such as child care or supporting the other's career.

If you have a written agreement, its terms matter too. An agreement can say when support changes or ends, for example on a new relationship, but a term that a spouse abstain from sexual relations after separation is not binding.

What to do next

Try to keep the focus on money and parenting, not on blame. Detailed evidence of an affair is unlikely to help your support claim in most cases, and it can raise costs and tension.

• Gather income, expense and asset records for both spouses.
• Write down the timeline of the relationship and separation. Spouses can be separated while living in the same residence.
• Note any conduct that you believe affected need or ability to pay, and raise it with a lawyer.
• Check the deadline. For a claim under the Family Law Act, a spousal support proceeding must generally 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. That limit is paused while the spouses are in family dispute resolution with a professional or in a prescribed process, and it does not apply to reviews of spousal support under sections 168 or 169. The Divorce Act has no time limit for a married or formerly married spouse to apply, although delay can still be considered.

A family lawyer can confirm how these rules apply to your situation.

Frequently asked questions