Our BC Court of Appeal has applied the draft Spousal Support Advisory Guidelines in the last 5 BC family law and divorce decisions in Tedham, Yemchuk, Warkentin, Redpath and Stein.  The new test is that the SSAG must be used by the courts except in exceptional circumstances.  The Guidelines are complicated but a simple summary is:

• The formula for cases where no child support is involved suggests an annual payment of 1.5% to 2% of the difference between the spouses’ gross incomes for each year of marriage or cohabitation, up to a maximum of 50%. Spousal support is to be paid for a duration of six months to a year for each year of marriage, and is indefinite for marriages of 20 years or longer. Say you were married 10 years, your gross income is $300,000 and your ex-spouse’s is $60,000. To determine your minimum support payment, multiply your income difference ($240,000) by 1.5, then multiply again by 10 (number of years of marriage). The grand total: $36,000 per year. Given the duration of your marriage, you’d be expected to pay this amount for at least five years.

• With child support, the formula is based on the combined individual net disposable income (INDI) of both spouses. Add together your and your ex-spouse’s INDIs, then multiply by 40% to 46% of the combined INDI: That’s the amount of support likely to be awarded to the lower-income spouse.

In Redpath, the Court of Appeal provided the following analysis of how important the draft advisory guidelines are (see the portion highlighted in red):

The long awaited British Columbia case involving, spousal misconduct and BC spousal support, of Leskun came down on June 21, 2006.  The BC spousal support case broke ground on the issue of what- if any-  impact should spousal misconduct and its consequences have on spousal support awards and what proof should be required.

One of the most interesting issues moving forward is how should family property awards impact on the entitlement and quantum of spousal support.  As divorcing parties acquire more assets through their efforts and inheritances this issue becomes even more important.

WILL I BE PAYING SPOUSAL SUPPORT FOREVER?
Spousal Support Awards under BC Family Law Legislation

British Columbia Spousal Support awards come in various forms. Awards can be time-limited, permanent or reviewable. But what does all this mean? Is there ever any certainty as to how long the payor will be paying for? The simple answer is no.  We have already detailed the new Spousal Support Guidelines in other articles at this site and will not review them again in this article.

A time -limited award for spousal support in BC means that the payor spouse will pay the recipient spouse for a defined period of time. The period can be defined in various ways including the number of years, or by the happening of a certain event such as the payor spouse’s retirement. This sounds straightforward enough, but the hitch is that the recipient spouse can apply to have this order varied; potentially extending the length of time that the payor spouse will pay him or her provided that he or she can prove a ‘material change of circumstances.’ Simply stated, a material change of circumstances is any significant factor that was unanticipated at the time the spousal support award was made which affects the needs of the recipient, the means of the payor and/or the general fairness of the award. An example would be a debilitating illness or inability to pursue employment for some reason out of the recipient’s control.

Similarly, a permanent award is not always permanent. Like time-limited awards they can be varied. In this case, a payor spouse may apply to court to have the award either limited in duration and/or reduced in quantum upon a material change in circumstances. Examples of a material change in circumstances may be illness; loss of employment; retirement; bankruptcy; a new family to support; or any combination of these and other factors.

Perhaps the most unpredictable of spousal support awards, are reviewable awards. Reviewable awards are becoming increasingly popular with BC courts and are generally made where it is unclear if or when a recipient spouse will become economically self-sufficient. Essentially, the court will order a quantum of spousal support to be paid for a defined period at which time either or both parties will be at liberty to apply to court to have the award reviewed. The difference between an application for review and an application for a variation is that the spousal support award continues to remain in effect pending a review. That means if the payor doesn’t apply for the review he or she must continue to pay indefinitely. Also, neither party is required to prove a material change of circumstances upon a review. Rather, the court is entitled to decide the issue afresh. In some situations, the court will provide directions to the judge who will be conducting the review in the future about what issues should be considered on a review. For example, reviewable awards are particularly useful in circumstances where it is unclear whether or not spousal support should be continued and if so in what amount so the Judge ordering the review may direct the reviewing judge to look at the recipient’s spouses efforts to obtain economic self-sufficiency by doing such thing as pursuing training and/or applying for jobs.

Many BC family law practitioners and legal scholars believed that the decision of Moge v. Moge [1992] 3 S.C.R. 813 would forever change the landscape of awards of spousal support awards in Canada. Specifically, many thought that Moge meant that upon divorce the standard of living for each former spouse would be equalized, particularly after a long marriage, such that the spouse with the higher income would pay spousal support to the lower income spouse in an amount that would give them equal standard of living. The now famous quote from Moge is:

As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see) Rogerson "judicial" interpretation of the spousal and child support provisions of the Divorce Act, 1985, (Part 1) at pp.174-75.

Has that happened? Not really. Spousal support awards still tend to be unpredictable and some may argue - erratic. However, there has been a trend since Moge towards equalizing the standards of living of the former spouses.

Two recent decisions family law decisions of our British Columbia Court of Appeal have been handed down in the cases of Yemchuk and Tedham and both cases used the new spousal support guidelines to support  generous awards of spousal support and to one case remove time limited support on the grounds too much emphasis had been placed on the clean break principal.  The authors of the guidelines Professors Rogerson and Thompson have lauded these decisons as very important cases in the Canadian spousal support jurisprudence.  As these decisions come from British Columbia's highest court the judgments will be used to support similar arguments in lower courts of British Columbia and considerably increase the credibility of these new guidelines.

The BC family law lawyers at the MacLean Family Law Group have reviewed British Columbia family law and BC spousal support cases that have applied or at least considered the new spousal support guidelines and note an early trend showing the majority of BC family law spousal support decisions have awarded amounts less than the low end of the guidelines.  One judge even commented that the guidelines do not reflect past case and statute law awards!

We provide a snap shot of 7 British Columbia family law cases.  For full details of each BC spousal support case sumarized below please contact Lorne MacLean at our head office in Vancouver.  The whole issue of BC spousal support will no doubt be canvassed in the Supreme Court of Canada in Leskun on November 18, 2005.

The hard working BC family law and BC divorce law lawyers at the MacLean Family Law Group www.bcfamilylaw.ca are heading to the Supreme Court of Canada on a huge BC spousal support case dealing with spousal support and misconduct, spousal support and how family assets should be considered in spousal support issues, spousal support and the duty of self sufficiency, and spousal support and how spousal support orders can be reviewed once they are made.  Writers and academics as well as the public are waiting to see if spousal misconduct can be properly considered in Canadian divorce cases as it was previously thought Canda had no fault divorce laws.

Mr. MacLean lead counsel is now 2 for 2 on applications to obtain leave to the Suprement Court of Canda and looks forward to leading MacLean Family Law Group on the upcoming November 18, 2005 hearing in the Supreme Court of Canada in Ottawa.

The spousal support advisory guidelines have now been applied in over 50 cases in Canada and our own BC Court of Appeal has just applied them in the 2005 case of Yemchuk.  While some BC judges have declined to follow the guidelines, this latest judgment may help parties who want the guidelines to be used in their BC family law spousal support cases.  We extract the judgment of our Court of Appeal below and it is important to point out that while the guidelines are not supposed to deal with BC spousal support entitlement they arguably provide automatic entitlement when there is a disparity of income.  The lawyers at MacLean Family Law Group will deal with the issue of entitlment in the November 18, 2005 Leskun case that will be heard by the Supreme Court of Canada on November 18, 2005.  Madam Justice Prowse speaking for the unanimous panel held:

Spousal Support Awards under BC Family Law Legislation
by Alison Ouellet

British Columbia Spousal Support awards come in various forms. Awards can be time-limited, permanent or reviewable. But what does all this mean? Is there ever any certainty as to how long the payor will be paying for? The simple answer is no.

A payor spouse who pays maintenance or support to a non-resident spouse may be liable for withholding tax pursuant to section 212 of the Income Tax Act (Canada).

Spousal Support Guidelines have been created by two law professors at the request of the federal government. These guidelines have generated much controversy as reducing the determination of spousal support after separation to a "Robin Hood" mentality of taking from the supposedly wealthier spouse and giving to the supposedly poorer spouse.

The MacLean Family Law Group, acting on behalf of Gary Leskun, is pleased to report the spousal support decision which created much debate across Canada after the decision of the BC Court of Appeal will be heard by the Supreme Court of Canada.