Who Is Entitled to Spousal Support in Manitoba?

If you are separating, you may wonder whether you can claim spousal support or whether you may be asked to pay it. There is no simple checklist, because the courts look at the whole picture of the relationship.

This article explains the grounds that matter. One update first: you may see older sources refer to the Family Maintenance Act, but that Act was repealed on July 1, 2023 and replaced by The Family Law Act, with orders made under the old Act staying in force.

This article covers the law of Manitoba.

Where the right to support comes from

Spouses have a mutual duty to contribute reasonably to each other's support, and after separation each spouse must take all reasonable steps to become financially independent of the other. On application by a spouse, a court may order one spouse to provide support for the other.

If you are applying as part of a divorce, the federal Divorce Act also lets a court order a spouse to secure or pay a lump sum or periodic sums as the court thinks reasonable for the other spouse's support.

You do not have to be married to be covered. The Family Law Act describes a common-law partner as a person not married to the other who has cohabited in a conjugal relationship for at least three years (or at least one year if they are together the parents of a child), or who has registered a common-law relationship under The Vital Statistics Act. Registering is voluntary, and partners who registered, or who lived together one year with a child or three years without one, have the same rights under The Family Law Act as married spouses.

Other Manitoba statutes, such as The Family Property Act and The Homesteads Act, use their own definitions of a common-law partner, so the test for property can differ from the test for support. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

The factors a court weighs under The Family Law Act

The court must consider all circumstances, including the following:

• The length of the relationship
• Roles during cohabitation
• Financial means and earning capacity
• Each spouse's needs
• Impairment of earning capacity from the relationship
• Steps toward independence
• Other support duties
• Prior orders and agreements
• Property division

Housekeeping, child care or other domestic service performed by a spouse for the family counts as a contribution. This matters if you stayed home or reduced your work to look after the household.

Divorce Act objectives

Under the Divorce Act, the court looks at the condition, means, needs and other circumstances of each spouse, including length of cohabitation, functions performed during cohabitation, and any order, agreement or arrangement on support. Its objectives are to:

• Recognize economic advantages or disadvantages from the marriage or its breakdown
• Apportion the financial consequences of child care
• Relieve economic hardship from the breakdown
• So far as practicable, promote each spouse's economic self-sufficiency within a reasonable period

The two statutes overlap but are not identical. This comparison shows how they line up on a few points.

What does not decide entitlement

Fault does not decide support. The Family Law Act states that conduct is not considered in deciding whether to order support, and under the Divorce Act the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Agreements matter too. If a spouse released the other from support or accepted a set amount in a written agreement, the court generally cannot order support for that spouse. Exceptions apply where there is default under the agreement, the support was inadequate when the agreement was made, or the releasing spouse now needs public assistance.

Neither statute sets a fixed duration or formula. Support can be a lump sum or periodic, for an indefinite or limited period or until a specified event, and an order can be varied on a change in circumstances.

What to do next

• Gather income records, tax returns and a list of your expenses
• Write down who did what during the relationship, including child care and household work
• Collect any separation agreement or earlier support order
• Do not sign a release of support without independent legal advice, since the agreement is a binding contract
• Speak with a lawyer about your own facts

If a support order is made, the Maintenance Enforcement Program, which is part of the Family Resolution Service, enforces court-ordered support and some written agreements under The Family Support Enforcement Act, and it receives and monitors payments and acts on arrears. Enrolling is optional unless the recipient receives social assistance and assigned payments to it.

The program works first with the payor to get voluntary payment, and if payments are not received as required, enforcement action could be taken, such as a support deduction notice or a licence suspension. It cannot guarantee payment, and it does not enforce parenting or contact terms or property division. Its phone number is 204-945-7133 or toll-free 1-866-479-2717.

Frequently asked questions