Who Is Entitled to Spousal Support in New Brunswick?

If your relationship is ending, you may wonder whether you can claim support from your spouse, or whether you may be asked to pay it. There is no single formula that decides entitlement.

In New Brunswick, entitlement comes from the Family Law Act and, for married spouses in a divorce, the federal Divorce Act. This article explains the main grounds in plain terms.

This article covers the law of New Brunswick.

The starting point: need and ability

Under the Family Law Act, every spouse has an obligation to provide support for themselves and for their spouse, in accordance with need, to the extent capable of doing so. Two questions follow: does one person have a need, and can the other person reasonably meet it?

In a divorce, the court may order a spouse to pay or secure lump sum or periodic support, either interim or final, for a definite or indefinite period. It looks at the condition, means, needs and other circumstances of each spouse, including the length of cohabitation and the functions each performed.

Need, compensatory and self-sufficiency grounds

The Divorce Act sets out what a support order should do. It should recognize economic advantages or disadvantages arising from the marriage or its breakdown, relieve economic hardship, and promote economic self-sufficiency within a reasonable period.

For example, a spouse who set aside career opportunities to care for the household may point to a compensatory disadvantage. Whether and how much support follows depends on the facts, so these are general illustrations only.

Married spouses and common-law partners

The Family Law Act extends the support obligation to common-law partners in two cases. A common-law partner is a person who cohabits in a conjugal relationship with another person without being married to them.

• Partners who have cohabited continuously for at least three years, with one substantially dependent on the other.
• Partners who have cohabited in a relationship of some permanence and are the parents of a child.

If neither situation applies, a claim may be difficult, and a lawyer can review your facts.

What does not count, and what comes first

In making a spousal support order under the Divorce Act, the court shall not take into consideration any misconduct of a spouse in relation to the marriage. An affair, for instance, is not a reason on its own to award or deny support.

Where both child support and spousal support are claimed, the court shall give priority to child support.

Agreements and what to do next

Many couples settle support by agreement. A domestic contract, including a separation agreement, must be in writing, signed by the parties to be bound, and witnessed. A valid signed and witnessed separation agreement is generally binding, since a domestic contract prevails over a conflicting provision of the Marital Property Act.

An agreement is not always final on support. The Court may set aside a provision for support, or a waiver of the right to support, where it results in unconscionable circumstances. Independent legal advice also matters, because the Court may disregard a domestic contract provision where a spouse signed without independent legal advice and applying it would be inequitable.

Support orders made in New Brunswick are automatically filed with the Office of Support Enforcement, and the recipient has eight days after the Office's information package is sent to opt out and receive payments directly.

A person who is not enrolled can opt in at any time by submitting a Notice to File Support Order form and a Client Information form, and either side can withdraw using the Application To Withdraw from OSE form. If payments stop, the Office's enforcement tools escalate, from garnishing wages, pensions, tax refunds, GST credits and bank accounts to driver's licence suspension if more than four months are owing.

• Gather tax returns, pay records and a list of monthly expenses.
• Note how long you lived together and who did what in the household.
• Write down career or education choices made because of the relationship.
• Do not sign a support waiver before getting independent legal advice.
• Ask a lawyer how your facts apply to the rules above.

Frequently asked questions