British Columbia Family Law Blog

In Yemchuk the parties had been married for 35 years and the husband had retired early as a result of mutual agreement of the parties.  The Court decided not to impute a notional  investment income on the capital that the husband received as a property settlement in the divorce which has been an approach used in other cases to reduce support quantum.  It seems only fair to add or ignore a similar investment income to the paying spouse such that you compare investment income or ignore investment income of both spouses and not take into account the income of only one of the spouses.

On the issue of spousal support guidelines the Court held:

       The Without Child Support Formula

Amount ranges from 1.5 to 2 percent of the difference between the spouses' gross incomes (the gross income difference) for each year of marriage (or, more precisely, years of cohabitation), up to a maximum of 50 percent.  The range remains fixed for marriages 25 years or longer at 37.5 to 50 percent of income difference.

Duration ranges from .5 to 1 year for each year of marriage.  However, support will be indefinite if the marriage is 20 years or longer in duration or, if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more (the rule of 65).

[Emphasis in original.]

[69]            In using this formula, a spouse's income is determined in the same manner as in the Federal Child Support Guidelines.   

[70]            Under these proposed Advisory Guidelines, the amount of support which would be payable by Ms. Yemchuk to Mr. Yemchuk ranges from $1,190 per month to $1,580 per month (in rounded figures).  At the low end of the range, Mr. Yemchuk's annual gross income would be $51,250 and Ms. Yemchuk's income would be $60,750.  At the high end of the range, Mr. and Ms. Yemchuk would each have income of approximately $56,000. 

[71]            The only authorities to which the Court was referred with respect to the quantum of support relate to the basic principles of support which I have referred to earlier in these reasons.  As Madam Justice McLachlin indicated in Bracklow, the considerations in determining quantum of support are interrelated to those applied in determining entitlement.  In that regard, I have found that Mr. Yemchuk's claim for support rests on both compensatory principles (relating to the circumstances and consequences of his early retirement) and need.  I have also found that equitable sharing of the economic hardship arising from the breakdown of the marriage, including a reduction of the disparity in relative standards of living of the parties is the most important principle applicable to spousal support in this case.  The ranges of support set out in the Advisory Guidelines are a factor which I have considered in attempting to give effect to these principles, after taking into account the overall financial circumstances of the parties.  In that regard, the expense lists of the parties are of limited assistance, particularly since Mr. Yemchuk has clearly restricted his expenses to a very basic level reflecting the significantly reduced standard of living he is experiencing as a result of the breakdown of the marriage.  Ms. Yemchuk's list may more closely reflect the standard of living during the marriage, but it involves a running and increasing deficit which reflects her attempt to maintain a standard of living which is not sustainable now that the parties are living separate lives. Unfortunately, both parties have reason to be concerned about their future security. 

[72]            Taking into account the fact that Ms. Yemchuk has increased needs for additional income to support her expenses relating to employment (including clothing, transportation expenses and significant compulsory employee deductions, not including pension and income tax), I conclude that the appropriate quantum of support in this case is $1,100 per month, reduced to $800 per month as of June 1, 2005 when Mr. Yemchuk became entitled to his Old Age Security Pension.  These payments shall be made on the first day of each and every month (or in equal instalments on the first and fifteenth day of every month if Ms. Yemchuk is paid bi-monthly) up to and including the last day of the month preceding Ms. Yemchuk's retirement. 

In the result the incomes were almost equalized after this 35 year marriage.

If you are considering marriage or divorce you should consult a lawyer on what your rights and obligations to spousal support are or will be.