One of the most contentious issues on marriage breakdown is should one spouse be supported by the other and if so how much will be paid and for how long. A huge issue that often arises is over what the lower income spouse can earn. I often tell clients that the theory used by Robin Hood, in taking from the rich to give to the poor, is as good an explanation of how the court decides the spousal support issue as any.
Many of our high net worth clients ask us what the current state of the law is concerning the duty of self sufficiency. Here are the best cases for minimizing spousal support if you are being asked to pay it. Remember to ask the court to attribute income to the spouse who is seeking support and consider presenting job ads and the resume of the spouse seeking spousal support to the court. It is one thing to prove to the court one cannot work but to do so we consider the spouse must make at least some effort at a job search and show the negative results from such a search as opposed to making no efforts at all.
In the future we will provide cases on the other side which promote equalization of the parties’ incomes.
Rednall v. Rednall [1986] B.C.J. No. 839 (B.C.S.C.) – With respect to the issue of spousal maintenance, Boyd L.J.S.C. found that a wife has a duty to become self sufficient and in order to do so she must find employment which is commensurate with her skills and experience. There must be clear evidence of an inability to become self-sufficient. In this case, Boyd L.J.S.C found that a 50 year old woman, with no real history in the work force, was able and required to find employment. On the facts, a maintenance order was made because it was unreasonable for Mrs. Rednall to earn an income which would allow her to live a lifestyle not unlike that which she would have if not for the breakdown of the marriage. The lifestyle during the marriage is described as “the typical corporate expatriate life, which affords a senior employee a comfortable lifestyle, including a large apartment, maid staff, access to chauffeured vehicles and numerous club memberships.” Mr. Rednall was the sole income earner during the marriage.
Thornett v. Thornett [1997] B.C.J. No. 867 (B.C.S.C.) (varied by British Columbia Court of Appeal at [1999] B.C.J. No. 1687 on other issues) – Section 15(7)(d) of the Divorce Act prescribes a liability on the applicant spouse if practicable to seek self-sufficiency. There is no immunity from the responsibility of the applicant spouse for contribution to her own self sufficiency, and the applicant spouse must prove impracticability. In this case, the wife sought spousal support after a 29 year marriage. The Court accepted that the wife had been economically disadvantaged by the marriage, but did not accept that it was impracticable for her to obtain employment. Accordingly, the Court attributed a notional capacity to earn to the wife at the rate of $1,000 per month and ordered the husband to pay spousal support in the amount of $2,500 per month.
Namespetra v. Namespetra [2001] B.C.J. No. 2761 (B.C.S.C.) – The applicant husband, who was healthy and able to work, applied for spousal support from the wife, who was disabled and living on a disability pension. Mr. Justice Crawford found that the husband gave no explanation as to why he had not obtained work, and that it would be repugnant to order support to be paid to the husband from the wife’s disability pension.
Wandich v. Viele [2002] O.J. No. 5 (Ont. S.C.) – The applicant wife had worked as a lawyer and as a chartered accountant prior to the marriage. The wife worked for the husband’s company for part of the time during the relatively short marriage. The husband was 72 years of age at the time of trial and the wife was 47 years of age. The Court held that the applicant wife had not made reasonable efforts to find employment since separation, and that she could have earned substantially more than she had been receiving in interim support if she had applied herself realistically to finding employment. In denying the claim for spousal support, the Court found that the wife ought to have been self-sufficient within one year of the separation.
Kennedy-Dowell v. Dowell [2002] N.S.J. No. 123 (N.S.S.C.) – Applicant husband sought spousal support from the wife. During the marriage, the wife worked at a number of low paying jobs in addition to caring for the children. The husband had been trained and worked for one year as a school teacher before embarking on several unsuccessful business ventures, and he had encouraged the wife to provide monies for the family to live on from her trust fund. Since separation, the husband continued to be self-employed in unsuccessful ventures and claimed that he continued to do so because he needed to travel on Thursday evenings to exercise access to the children. The Court found that this was not a practical reason, and the husband had not justified his reasons for not returning to the teaching profession or finding some other job that would pay him more than his $20,000 annual income from self-employment. The Court held that the husband had ample time in the 2 years since separation to improve his income and that he should be deemed to be self sufficient.
Bensadoun v. Bensadoun [2002] O.J. No. 2023 (Ont. S.C.) – The party claiming support has a duty to make reasonable efforts at self sufficiency, and a Court may impute income where a spouse fails to make such reasonable efforts. In this case, the applicant wife demonstrated entitlement to spousal support. The wife had stayed home and cared for the children during the marriage, occasionally working part-time while the husband worked full-time. However, the Court also held that the wife could work part time as a dental assistant at 30 hours per week and still provide the necessary childcare for the children, aged 7 and 11 years old, and therefore imputed income to her of $15,000 per year.
