In Alberta, a married person is eligible to receive spousal support from their spouse under the Divorce Act. Support for unmarried couples is governed by the Family Law Act and the Adult Interdependent Relationships Act. In those cases, support is referred to as Partner Support.
You might be eligible for either spousal or partner support depending on your circumstances, so we break it down for you to better understand.
To be eligible for spousal support you must be married to the person you are claiming spousal support from.
AM I ELIGIBLE FOR PARTNER SUPPORT?
Whether you are eligible for partner support is more complicated; to be eligible for partner support you need to be in a relationship of interdependence with the person that you are claiming partner support from.
A person is the adult interdependent partner of another person if, under the Adult Interdependent Relationships Act, one of the following occurs:
- You and your partner live together for a continuous period of 3 years or more; or
- You and your partner live together in a relationship of “some permanence” if there is a child by birth or adoption; or
- You and your partner have entered into an adult interdependent partner agreement under section 7 of the Act.
Once you have determined that you are eligible to claim support, you must then prove that you are entitled to receive support. Unlike child support, there is no automatic legal obligation for one party to pay spousal or partner support to the other.
Essentially, you need to prove that you are entitled to receive support from your ex. This entitlement must be proven through at least one of three categories; compensatory entitlement, non-compensatory entitlement, and contractual entitlement.
Compensatory entitlement is based on the idea that one party may have been economically disadvantaged because of the roles adopted during the marriage or that one party economically benefited without adequately compensating the other.
Non-compensatory entitlement recognizes that parties in a relationship can often become financially dependent on each other, creating elements of reliance and expectation. If the Court is satisfied that one party needs support to meet basic needs or maintain their standard of living, then non-compensatory entitlement will be recognized.
Contractual entitlement is the simplest of the three categories. Entitlement in this category is established if the parties have agreed, by way of contract, to pay support.
WHAT AMOUNT OF SPOUSAL SUPPORT AND FOR HOW LONG?
After establishing entitlement under at least one of the above categories, the monthly support amount and the duration must be determined. Since spousal and partner support revolves around the net disposable income of each party, it is entirely possible to be entitled but still receiving little to no money.
Quantum (How Much): the amount that a party can receive in support is heavily dependent on several factors, including:
- Whether child support is being paid and received by the parties;
- Whether a party is claiming the Canada Child Benefit or Eligible Dependent Credit;
- The net disposable income that each party has;
- The length of the relationship; and
- The type of entitlement.
An online spousal support calculator such as mysupportcalculator.ca will give you a range of amounts and many people erroneously believe the mid-range amount to be “fair”. However, the Spousal Support Advisory Guidelines explain, that depending on certain factors, the mid-range amount should not be the default.
Duration (How Long): for couples without children, the ranges for duration are calculated by using the length of the relationship.
If there are children involved, the ranges for the duration will vary based on when the children enter primary school and leave secondary school.
As a simple example, take John and Sally. John and Sally are adult interdependent partners because they have lived together for 10 years. John and Sally have no children together. Sally receives an annual income of $100,000.00 and John receives an annual income of $40,000.00.
As we already know that John and Sally are adult independent partners, we need to prove entitlement under at least one of the categories. For the sake of simplicity, let us assume that Sally agreed, by contract, to pay John partner support.
As there are no children of the relationship, calculating the ranges for the monthly partner support amount is done as follows:
$100,000.00 – $40,000.00 = $60,000 (this is the gross difference in income)
Low Range $60,000.00 x 1.5% x 10 years = $750.00 per month
High Range $60,000.00 x 2% x 10 years = $1,000.00 per month
Mid-Range = High + Low divided by 2 = $875.00
John and Sally have no children, so calculating the ranges for duration is a fairly simple process (although there are exceptions). To calculate the high-end of the duration, we take the length of the relationship, which is 10 years. To calculate the low end of the duration, we take half the length of the relationship, which is 5 years.
So, now we know that Sally will be paying John somewhere between $750.00 to $1,000.00 per month, for at least 5 years and up to 10 years, based on contractual entitlement.
A lot of information to digest we know, so if you’re looking for legal advice or counsel regarding spousal or partner support, we can help! Hayes Fry Law is known for redefining the practice of law because we believe in doing things differently, but well. Particularly when it comes to family law.