Who Has to Pay Spousal Support in Nova Scotia?

Many people separating in Nova Scotia wonder whether they will be the one paying spousal support or the one receiving it. There is no rule that the higher earner always pays, or that a particular spouse always receives.

This article explains how the Divorce Act frames spousal support, what the court looks at, and how support you agree on yourselves fits in. The result in any case depends on the facts.

This article covers the law of Nova Scotia.

No automatic payer or recipient

When making a spousal support order under the Divorce Act, the court must consider the condition, means, needs and other circumstances of each spouse, including how long they lived together and the functions each performed during that time.

That means the court looks at both spouses' situations rather than starting from a fixed rule about who pays. It turns on the full picture of both spouses' situations.

Spousal support under the Divorce Act can come up alongside a divorce. A court may grant a divorce on the sole ground that the marriage has broken down. Breakdown is established if the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined, and were living separate and apart when it started. You do not have to wait a year if the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable. Also, the year is not interrupted just because the spouses resumed living together for no more than 90 days in total, where the primary purpose was a reconciliation attempt.

The goals behind support: compensatory and non-compensatory

Lawyers often describe support as compensatory or non-compensatory. These are labels for the reasons behind a claim, and the Divorce Act sets out the objectives a support order should serve.

• Compensatory reasons look backward: recognizing economic advantages or disadvantages to the spouses from the marriage or its breakdown, and apportioning the financial consequences of child care. For example, one spouse may have reduced paid work to care for children.
• Non-compensatory reasons look to need: relieving economic hardship arising from the breakdown of the marriage.
• Self-sufficiency is also a goal: an order should promote each spouse's economic self-sufficiency within a reasonable period.

A single claim can rest on more than one of these reasons. Which apply to you depends on your history and finances.

Contractual support

Some couples try to work out support between themselves, in writing, rather than leave it to a judge. Support arranged this way is often called contractual. Whether and how a court will later change or enforce an agreement depends on its wording and the circumstances, so have it reviewed by a lawyer before you sign.

Nova Scotia legal aid family coverage includes separation agreements.

If you are struggling to agree, the Family Division offers court-based options, including conciliation, where a court officer meets the parties to identify issues and explore settlement, mediation with a neutral mediator who cannot make orders, and voluntary judge-led settlement conferences.

What the court does not consider

Fault is not part of the decision. The court is not to consider misconduct of a spouse in relation to the marriage when making a spousal support order. An affair or bad behaviour during the marriage will not on its own make someone pay or stop someone receiving.

If you were not married, the rules that apply to a support claim depend on your situation, so it is worth confirming with a lawyer which ones apply to you.

Divorces in Nova Scotia are heard in the Supreme Court of Nova Scotia (Family Division). That court also hears child support and division of matrimonial assets and debts.

Collecting and enforcing support

The Maintenance Enforcement Program (MEP) is a free Nova Scotia service that helps people pay or receive court-ordered child or spousal support. The payor sends money to MEP, which passes it to the recipient. Enrolling an order is optional.

Enforcement tools include garnishing wages, benefits and bank and investment accounts, and asking for suspension of a motor vehicle or hunting and fishing licence or revocation of a passport. MEP cannot enforce an order that is not enrolled.

What to do next

• Gather income records, a list of debts, and details of who cared for children and managed the household.
• Write down any career or education choices made because of the marriage.
• Check whether you already have a separation agreement or marriage contract.
• Consider enrolling any order with MEP.
• Ask a lawyer how the Divorce Act factors apply to your facts before agreeing to an amount.

If cost is a concern, legal aid may be available if you qualify for certain benefits, or if the Commission finds that retaining a lawyer would cause undue financial hardship.

If Nova Scotia Legal Aid refuses, suspends or withdraws legal aid, you can appeal to the Commission by written request for review.

Frequently asked questions