Lorne MacLean, high net worth BC divorce lawyer and his BC MacLean Family Law Group handle many high BC spousal support income and high BC family asset net worth cases and recently obtained a combined BC child and spousal support award of almost $30,000 per month. Many high net worth BC family asset cases not surprisingly involve high BC spousal support income as well. Until recently it had been thought that a BC high net worth family asset award to a spouse of perhaps 3 to 4 million dollars would mean the BC spouse with a lower income would not be entitled to spousal support as they would be receiving a generous award of family assets which could be used to generate income and as well the capital could be slowly used up as well over the lifetime of the spouse. The recent BCCA case of Chutter has turned this idea upside down.
An older Supreme Court of Canada case called MOGE held that the longer the duration of a marriage the greater the presumption that equal standards of living for both separated households at the end of the marriage. This principle along the Spousal Support Guidelines and the DIvorce Act’s three part test for awarding support being:
1. contractual – a marriage or separation agreement exists;
2. need and ability to pay-think Robin Hood – take from the rich and give to the poor; and
3. compensatory – think opportunities given up by lower income spouse as a result of being a homemaker including raising of children means their income is less than it could have been without these sacrifices;
has led the the Court of Appeal in Chutter to award a wife who received 4 million of assets with an a support award of $2800 a month compared to a spousal support advisory guideline range of over $4000 to over $5000 per month.
The question remains if 4 million of assets reduces support to less than 60 percent of the mid -range of support under the guidelines, what amount makes spousal support unnecessary and at what amount below $4 million does spousal support start to be reduced below the guidelines. Other arguments that arise in these cases are consideration of risk and income tax on assets each party keeps and what notional investment income should be attributed to the assets each party receives. Should a business asset that one spouse receives as part of their share of property have the income it produces excluded form spousal support considerations? Call us to find out your rights in this complex area.
The lengthy extracts from the case are attached.
II. Entitlement to Spousal Support
(i) Relevant statutory provisions and the case authorities
[45] Section 15.2 of the Divorce Act is the main provision governing entitlement to spousal support. Subsection 15.2(6) provides that a spousal support order should meet the following objectives:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[46] In order to achieve a fair and equitable distribution of resources, all four of these objectives should be examined: Moge v. Moge, [1992] 3 S.C.R. 813 at 850-853, 43 R.F.L. (3d) 345. Having regard to these policy objectives, courts must consider the condition, means, needs and other circumstances of each spouse, including the factors set out in s. 15.2(4):
(a) The length of time the spouses cohabited;
(b) The functions performed by each spouse during cohabitation; and
(c) Any order, agreement or arrangement relating to support of either spouse.
[47] Based on the statutory provisions and the case authorities, the Supreme Court of Canada has identified three grounds for entitlement to spousal support: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support (Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at paras. 15, 41-42, 44 R.F.L. (4th) 1).
[48] The claim for spousal support in this case was advanced on compensatory and non-compensatory support principles.
[49] Although the compensatory and non-compensatory grounds for spousal support are animated by different models of marriage, the case authorities hold that there is no single basis of support or objective under the Divorce Act that supersedes the other, and that many claims involve aspects of both compensatory and non-compensatory principles (Bracklow, at para. 27; Moge, at 852). A court is not called upon to decide on one basis for support to the exclusion of the other but rather to [apply] the relevant factors and strik[e] the balance that best achieves justice in the particular case” (Bracklow, at para. 32). Moreover, the doctrine of equitable sharing is the overarching principle that must be borne in mind (Moge, at 864).
(ii) Compensatory support
[50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868:
The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‚Äëbeing. In such situations, spousal support may be a way to compensate such economic disadvantage.
[51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse‚Äù (emphasis added).
[52] The Court in Moge discussed the relevance of the parties’ standards of living in the context of compensatory support at 870:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement…. 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.
[Emphasis added, internal citations omitted.]
[53] In W. v. W., 2005 BCSC 1010, 19 R.F.L. (6th) 453, a frequently cited decision in trial decisions in British Columbia, Justice Martinson made the following helpful observation about the interpretation in this province of the emphasized portion in Moge:
[11] In British Columbia this comment in Moge has been interpreted to mean that in long marriages the result will likely be a rough equivalency of standards of living. Doing so recognizes that the longer a marriage lasts, the more intertwined the economic and non-economic lives of the spouses become.
[12] Throughout the marriage, each spouse makes decisions that accommodate the economic and non-economic needs of the other. The decisions include the way in which child care and other family responsibilities will be handled and the way careers will develop. These decisions can have a significant impact upon the income earning ability of each at the time of separation. Yet it is not easy to determine exactly the relationship between these decisions and the consequent benefits and detriments to each spouse. The rough equivalency of standard of living approach has operated as a workable substitute to assess compensatory claims. See for example, Dithurbide v. Dithurbide (1996), 23 R.F.L. (4th) 127 (B.C.S.C.); Rattenbury v. Rattenbury, 2000 BCSC 722; Rinfret v. Rinfret, [1999] B.C.J. No. 2945 (S.C.);O’Neill v. Wolfe (2001), 14 R.F.L. (5th) 155 (B.C.S.C.); Walton v. Walton, [1997] B.C.J. No. 1089 (S.C.); Ulrich v. Ulrich, 2003 BCSC 192; and Carr v. Carr (1993), 46 R.F.L. (3d) 326 (B.C.S.C.).
(iii) Non-compensatory support
[54] Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow, at para. 43). Non-compensatory support is grounded in the social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the means and needs” approach to spousal support.
[55] The concept of needs‚ in the context of non-compensatory spousal support goes beyond basic necessities of life and varies according to the circumstances of the parties. As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, at para. 10:
Need‚ or needs‚ are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as a whole. Need‚Äù does not end when the spouse seeking support achieves a subsistence level of income or any level of income above subsistence. Needs‚ is a flexible concept and is one of several considerations which a trial judge must take into account in deciding whether any order for spousal support is warranted.
[56] The Ontario Court of Appeal in Allaire v. Allaire (2003), 170 O.A.C. 72, 35 R.F.L. (5th) 256, held that self-sufficiency, a spousal support objective primarily related to non-compensatory support (Bracklow, at paras. 41-42), was a relative concept informed by the standard of living previously enjoyed by the parties:
[21] self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire’s income, it is inappropriate to consider Ms. Allaire’s annual income of $68,000 as sufficient‚Äù without considering whether Mr. Allaire can financially assist her to live a lifestyle closer to what they shared as a couple.
[57] In Yemchuk v. Yemchuk, 2005 BCCA 406 at paras. 41, 48-49, 16 R.F.L. (6th) 430, Prowse J.A. referred to Myers and further held that in the context of a long-term marriage involving a sharing of resources, the concept of need‚Äù should take into account the relative standards of living of the spouses following the marriage breakdown. In Yemchuk, the husband had appealed the decision of the trial judge dismissing his claim for spousal support on the basis that he had not established any need. While Prowse J.A. found that the husband was entitled to spousal support on compensatory grounds, she also went on to state that the trial judge’s treatment of the husband’s need for support had been unduly restrictive:
[41] I am also satisfied that the trial judge erred in viewing Mr. Yemchuk’s need‚ for support from too narrow a perspective. He treated need‚ as solely a question of whether Mr. Yemchuk could meet his stated expenses with the income available to him. After attributing $800-$1,000 per month to Mr. Yemchuk, the trial judge found that Mr. Yemchuk could meet his expenses and, therefore, was not entitled to support.
[58] In Tedham v. Tedham, 2005 BCCA 502, 20 R.F.L. (6th) 217, Prowse J.A. referred to Yemchuk as illustrative of the fact that the courts, at least in longer marriages, are measuring need against the marital standard of living (para. 55), and followed Allaire in finding that the objective of self-sufficiency must be viewed in the context of the marital standard of living (para. 60).
[59] Non-compensatory support was also considered in Hodgkinson v. Hodgkinson, 2006 BCCA 158, 25 R.F.L. (6th) 235. In that case, the parties divided assets of close to $7 million, and the wife was awarded time-limited spousal support on non-compensatory grounds. The trial judge had found that the wife was not entitled to spousal support on either compensatory or non-compensatory grounds: she was not financially disadvantaged by the marriage; she was both highly trained and capable of stepping back into the work force; and she was able to earn investment income from her share of the capital assets. On appeal, Saunders J.A., for the court, held that the trial judge’s analysis of the wife’s needs and means was impermissibly narrow‚Äù; in part because it had not taken into account the marital standard of living or the husband’s post-separation standard of living:
[68] However, the trial judge did not relate that capacity to earn income from her capital assets and from employment to the standard of living the parties enjoyed during marriage or to the standard of living of Mr. Hodgkinson after trial, or advert to the time lag that would be involved in earning income from a business if Mrs. Hodgkinson immediately resumed work as a chef or caterer. While none of these factors is, by itself, a determinant of Mrs. Hodgkinson’s entitlement to spousal support, their absence illustrates what I consider an impermissibly narrow approach to the issue of spousal support.
[69] Both the question of hardship to Mrs. Hodgkinson ([15.2(6)(c)]) and her self-sufficiency ([15.2(6)(d)]) bear some relationship to the standard of living enjoyed by the parties during the marriage (tempered by the income available) and by the other spouse after the marriage. While Mrs. Hodgkinson is not entitled to support at a level that would maintain the highly affluent lifestyle the parties shared, particularly as it appears to have been beyond the level of Mr. Hodgkinson’s earnings, in these circumstances she is entitled to a degree of comfort well beyond basic needs‚Äù.
[74] It was an error, in my view, for the trial judge to fail to recognize these several aspects. The arrangement between the parties during marriage as described by the trial judge, in my view, required consideration of spousal support from the perspective of the standard of living that is still reasonably available to them, although in two residences. While recognizing that Mrs. Hodgkinson is not necessarily entitled, step for step, to Mr. Hodgkinson’s standard of living, something closer is required.
[60] The trial judge distinguished Hodgkinson on the basis that the wife had been awarded non-compensatory support for the time required to restore her career, whereas in this case the appellant had been continuously employed for many years. However, the factual differences betweenHodgkinson and this case do not diminish the principle that an analysis of the support-seeking spouse’s needs‚Äù under non-compensatory support, i.e., the objectives of ss. 15.2(6)(c) and 15.2(6)(d) of the Divorce Act, requires some consideration of the standard of living enjoyed by the parties during the marriage and by the other spouse after the marriage.
[61] Finally, I note that in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, the Ontario Court of Appeal recently reiterated the principle that self-sufficiency is a relative concept encompassing more than the ability to meet basic expenses:
53 Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. ‚¶
IV. Submissions of the Parties
(i) Appellant’s submissions
[62] The appellant argues that she is entitled to spousal support under both compensatory and non-compensatory grounds. With respect to compensatory support, the appellant points to the economic advantages gained by the respondent in the marriage and the economic disadvantages she has correspondingly suffered. Early in the marriage, the respondent made clear that he wished her to be the primary caregiver for their son and run every other aspect of their lives‚Äù, except for the business. That permitted the respondent to pursue his career and business interests unencumbered by the responsibilities she assumed. The respondent benefited financially from this arrangement for had she not fulfilled the role he designated, he would not have been able to gain the considerable business experience and the financial success he has achieved. By contrast, the appellant trained as a dental hygienist at a young age and had no opportunity during the marriage to become anything else because of the demands of the respondent’s business and his desire that she be a traditional wife‚Äù. The appellant argues that her current age and health impede her ability to earn more employment income.
[63] The cases on which the appellant relies in support of her claim for compensatory support include Camp v. Camp, 2006 BCSC 608, 26 R.F.L. (6th) 347; J.W.J. McC. v. T.E.R., 2007 BCSC 252, 155 A.C.W.S. (3d) 899; and Allaire.
[64] With respect to non-compensatory spousal support, the appellant argues that she is entitled on the basis of need because her standard of living is not equivalent to that which she enjoyed during the marriage and is far below that of the respondent because of his greater income earning capacity and the nature of the assets he received in the division. In the appellant’s submission, the trial judge’s consideration of need was narrowly based on her ability to meet her expenses. Further, when the trial judge concluded that she could meet her expenses based on income from her employment and from her assets, he overlooked the fact that a portion of her assets do not produce income and withdrawals from her RRSPs would have the effect of encroaching on her capital and triggering immediate tax. By contrast, the appellant submits, the respondent’s assets have the potential to produce a substantial income.
(ii) Respondent’s submissions
[65] The respondent’s arguments largely focus on principles of non-compensatory support and do not directly address the issue of whether the appellant is entitled to support on a compensatory basis. The respondent has, however, made submissions concerning the cases on compensatory support on which the appellant relies.
[66] The respondent argues that while the appellant has no need for further income to maintain the marital standard of living, she could generate further income as a result of her educational background, training, and good health. Furthermore, she could rent out a portion of the house, downsize, or invest some of the home’s value for additional income. As a consequence, the respondent submits that need has not been established. The respondent referred to and relied on the judge’s findings and conclusions set out at paragraphs 35-44 of these reasons.
V. Analysis
[67] In my opinion, the learned trial judge took too narrow a view of the compensatory principles of spousal support when he concluded that the appellant was not entitled to spousal support. While there was no evidence that the appellant had missed a promotion or lost an opportunity for further training as a dental hygienist while she was primarily responsible for the care of the parties’ son, that does not mean that her prospects for future financial success were not diminished by the role she played in the marriage.
[68] After the parties’ son was born, the appellant was constrained in her employment by her role as a mother. When the appellant went back to work as a dental hygienist in 1985, the respondent was in agreement only so long as her employment did not interfere with her being able to provide care for their son. As the following evidence demonstrates, the appellant arranged her work schedule so as to accommodate the perceived needs of their son:
He wanted me there for when our son came home from school, and I had the flexibility with my employer to say I can go back and work three days a week. I won’t take lunch. I’ll work through lunch, but I need to be home at 3:00.
[69] The appellant’s ability to further her career as a hygienist, or pursue other careers, was limited by these constraints. As she testified, at one point during their relationship she considered pursuing a career in real estate but after discussion with the respondent, the appellant recognized that such a career was not feasible in light of her role in the marriage as primary caregiver for their son and the respondent’s business pursuits. It is readily apparent from their conduct that the respondent’s business career was given priority over the appellant’s career and that any employment she did pursue was secondary to and limited by her role of wife and mother.
[70] With respect to compensatory support, the trial judge also failed to consider the extent of the appellant’s contribution to the waterslide business that is the source of the respondent’s income. The appellant’s testimony was that in 1981, both parties quit full-time employment to move to Penticton and begin operating a campground business. In 1982, they shifted their business focus from operating waterslides to designing and manufacturing them. The business was started in their home, with the appellant assisting the respondent by acting as a secretary and taking orders. These facts highlight the joint efforts of the parties in establishing the business. Moreover, it was because the appellant took on the role as the parent primarily responsible for the care of their son that the respondent was able to pursue and expand Whitewater, both in Canada and abroad. The appellant’s direct contribution to the business, as well as her indirect contribution by acting as the primary caregiver and household manager, offered an economic advantage to the respondent in that he has gained many years of national and international business experience.
[71] Further, in drawing the conclusion that the appellant did not suffer disadvantage in her personal career, the trial judge put substantial weight on the fact that the appellant resumed her former job as a dental hygienist after fulfilling her caregiver role. However, the fact that the support-seeking spouse was employed outside the marriage, or engaged in the same career at the end of the marriage as at its start, does not necessarily preclude entitlement to spousal support on compensatory grounds. What was said by McLachlin J. (as she then was) in concurring reasons in Moge, at 882, is apposite:
Even women who have worked outside the home during the marriage may find that their career advancement has been permanently reduced by the effort which they devoted to home and family instead of their jobs, whether the woman be a janitor like Mrs. Moge or a well-trained professional.
[72] Similarly, in Myers, the wife had worked part-time and full-time as an x-ray technician during the marriage and continued with that employment full-time after the separation. Despite this fact, the trial judge held that the wife was entitled to a support order on the basis that she had been economically disadvantaged, and the husband advantaged, by the marriage and its breakdown: throughout the marriage the husband’s career was given precedence by both parties over the wife’s employment outside the home; the wife’s career was secondary to the husband’s and secondary to her role as wife and mother (paras. 6-7). This Court upheld the trial judge’s decision, ruling that there was no basis to challenge his finding of economic disadvantage to the wife, since although the wife did not abandon her profession completely during the marriage, she had not pursued it in the way she might have had the parties chosen to treat it as their primary source of income rather than as supplemental to that of her husband (para. 9).
[73] In Francis v. Baker (1997), 28 R.F.L. (4th) 437 at para. 43, 150 D.L.R. (4th) 547, (Ont. C.J.), affd (1998), 38 O.R. (3d) 481, 34 R.F.L. (4th) 317 (C.A.), the trial judge held that the fact that the wife was able to resume her pre-marriage career after separation did not preclude a finding of economic disadvantage: I do not accept the argument that, because she was a teacher before and is a teacher after the marriage, she has suffered no economic loss. On the contrary, the wife’s career had suffered as a result of her child raising responsibilities and the comments in Moge at 862 applied in the circumstances: the sacrifices made by the mother catch up with her and confer a benefit on the father who is able to focus his attention outside the home.‚Äù At the time of marriage, the wife was a teacher and the husband a lawyer. The wife had taken two years off from teaching to raise the couple’s two children, but then returned to teaching full-time. The trial judge’s award of compensatory and non-compensatory spousal support was upheld by the Ontario Court of Appeal.
[74] The Ontario Court of Appeal came to a similar conclusion in Allaire. In Allaire, the Court rejected the husband’s argument that because the wife had worked full-time during the marriage and had advanced in her career there was no basis for a finding that she had been economically disadvantaged:
[18] Mr. Allaire submits that the trial judge erred in finding that the breakdown of the marriage resulted in economic disadvantage to the wife, arguing that Ms. Allaire is economically self-sufficient and that the domestic arrangements in place during the marriage enhanced her career and economic prospects, citing Ms. Allaire’s thirty years of tenure with her employer and her promotion to coordinator of her programme. He also points to the fact that both parties were able to advance their careers because their combined full time income of $250,000 permitted them to afford childcare. This, he states, means that theirs was not a traditional marriage.
[19] These submissions do not accord with the findings of fact made by the trial judge, and rest on a very narrow interpretation of what constitutes a traditional marriage. The trial judge found that Ms. Allaire suffered economic disadvantage as a result of the marriage. The record amply supports these findings of fact. She postponed her ambitions early in the marriage in order to finance the appellant’s six years of university studies. The parties‚ desire to continue to build a family after the appellant had concluded his university studies further delayed her ability to earn a university degree. As a result of these arrangements, she was unable to pursue career options that required a university degree. The fact that she worked outside the home does not make her reduced economic choices any less traditional. Mr. Allaire, on the other hand, has enjoyed significant economic advantages as a result of his ability to earn university degrees early in the marriage.
[75] In this case, the trial judge appears to have reasoned that the appellant had already been adequately compensated as a result of the rough equality‚Äù in the division of the parties‚ substantial assets. It is well-settled law in this province that a court must first resolve the division of property before turning to the issue of spousal support, since the results of the property division will affect the relative condition, means and needs of the parties.
[76] In some cases, an order for reapportionment under Part 5 of the Family Relations Act may obviate the need for a spousal support order by fully addressing all the factors and objectives of spousal support: Tedham, at paras. 67-69; Narayan v. Narayan, 2006 BCCA 561, at paras. 33-44, 34 R.F.L. (6th) 272. However, the assets in this case were divided roughly equally and no order was sought or made for reapportionment. This is not a case such as Toth v. Toth (1995), 17 R.F.L. (4th) 55, 13 B.C.L.R. (3d) 1 (C.A.), or Narayan, where spousal support was not granted but family property was reapportioned in favour of the support-seeking spouse under ss. 65(1)(f) and 65(1)(e) of Part 5 of the Family Relations Act on grounds overlapping with spousal support entitlement. In Toth, the wife received 80% of the parties’ jointly-owned real property; and in Narayan, the wife received 100% of the matrimonial home, which was approximately 75% of the value of all of the family assets.
[77] Nor is this case analogous to Newson v. Newson (1993), 45 R.F.L. (3d) 115, 78 B.C.L.R. (2d) 35 (C.A.), in which the division of assets was found to satisfy any claim the wife might have had to spousal support. In Newson, the husband had brought substantial assets with him into the relationship but in this case, the assets were built up during the course of the parties’ lengthy marriage.
[78] Tedham noted that while Toth cautioned against the danger of double recovery through both property division (specifically reapportionment) and spousal support, there is an equally real danger that a spouse will be inadequately compensated from property division alone (paras. 63-64, 70). In Tedham, the Court held that the wife was entitled to indefinite spousal support as well as reapportionment of the family assets in her favour. Similarly, in W. v. W., Martinson J. rejected the argument that a spouse who had assumed the majority of parental responsibilities was adequately compensated solely by a division of assets:
[14] It is sometimes argued that the disadvantage to the primary parent is off-set by the advantage that person receives by obtaining a share of the assets accumulated. In my respectful view this approach does not take into account how the advantages and disadvantages can arise based on the roles spouses play.
[15] Raising children is a round the clock endeavour. The primary income earner is in a position to earn money to accumulate assets often in large part because that person is relieved of many aspects of that 24 hour a day job. When the relationship ends, it is not just the secondary earner who receives assets. The primary earner also receives a share, often half, of the assets.
[16] Therefore, in a typical case, the primary earner has three benefits: the benefit of a share of the assets; the benefit of having had children; and the benefit of a higher income earning ability because of full participation in the work force, substantially unencumbered by child care responsibilities. The secondary earner has two of these benefits: the benefit of a share of the assets accumulated; and the benefit of having had children. However, that spouse often does not have the same income earning ability at the time of separation because of the role played in the marriage. It is that disadvantage, and the concurrent advantage to the other spouse, that can be addressed by a compensatory spousal support award.
[79] In my view, the trial judge’s emphasis on his finding that the assets the appellant received in the division of property can provide her with a standard of living comparable to that which she enjoyed during the marriage overlooks the principles underlying compensatory support where one spouse has been disadvantaged by the marriage or its breakdown relative to the other spouse. As this Court held in Tedham, at para. 60, a spousal support award based on compensatory principles should continue until compensation is achieved, even if the recipient spouse has achieved a degree of self-sufficiency. In arriving at that conclusion, this Court cited Allaire, in which the Ontario Court of Appeal rejected the husband’s argument that any disadvantages flowing from the marriage must defer to the fact that the wife, at the time of trial, was nevertheless able to earn a reasonable income (para. 21). That opinion was echoed by this Court in Beese v. Beese, 2008 BCCA 396. In Beese, the wife was awarded compensatory spousal support for the economic disadvantage she had suffered as a result of the marriage, notwithstanding the fact that following the separation she had been living with, and supported by, another partner and that, as of the date of trial, she was fully employed and earning an income not substantially less than that of the husband.
[80] Generally, the case authorities support the view that even in the context of high asset cases such as this one, entitlement to spousal support is not precluded: Metzner v. Metzner (1997), 28 R.F.L. (4th) 166, 34 B.C.L.R. (3d) 314 (C.A.); Francis v. Baker; R. v. R. (2002), 58 O.R. (3d) 656, 24 R.F.L. (5th) 96 (C.A.); Brown v. Rae, 2001 ABQB 809, 24 R.F.L. (5th) 293; Tauber v. Tauber (2001), 203 D.L.R. (4th) 168, 18 R.F.L. (5th) 384 (Ont. Sup. Ct.), aff‚Äôd (2003), 64 O.R. (3d) 229, 34 R.F.L. (5th) 450 (C.A.); Macdonald v. Macdonald, 2005 BCCA 23, 10 R.F.L. (6th) 423;Spiers v. Spiers, 2003 ABQB 830, 48 R.F.L. (5th) 198; Martin v. Martin (2004), 12 R.F.L. (6th) 415, [2004] O.T.C. 1139 (Sup. Ct.), aff‚Äôd (2006), 81 O.R. (3d) 503, 40 R.F.L. (6th) 32 (C.A.); Greither v. Greither, 2004 BCSC 1183, 10 R.F.L. (6th) 338, aff’d 2005 BCCA 550, 22 R.F.L. (6th) 10;Modry v. Modry, 2005 ABQB 262, 375 A.R. 198; and Hodgkinson v. Hodgkinson. For a summary of these cases, as well as a number of high asset cases in which the court has not awarded spousal support, see Lawrence A. Kahn and Sarah R. Picciotto, Are There Cracks in the Glass Ceiling?: A Survey of Spousal Support Awards in High-asset Cases since Moge‚ Continuing Legal Education Society of B.C. (Sept. 2006).
[81] In Macdonald, the wife’s compensatory spousal support claim was not barred by the fact that she had received a large asset award upon equal division of family property. Each party received approximately $4,000,000 at trial. The wife was the primary caregiver for the parties‚Äô three children throughout their 11-year marriage and the husband earned approximately $2,500,000 per year at the time of the trial. The trial judge awarded the wife lump sum spousal support in the amount of $750,000. On appeal, this Court dismissed the husband’s appeal of the spousal support award, stating at para. 17:
[17] On the facts of this case, the compensatory loss-based entitlement required the greatest emphasis, though there was some requirement for consideration of the need for retraining. Mrs. Macdonald’s economic loss arose not so much from entry into the marriage but from the role she played throughout the marriage and from the marriage breakdown itself. Throughout the marriage Mrs. Macdonald looked after the children and the home and created an environment in which Mr. Macdonald was free to pursue his career, as he did with diligence and very good effect. At the end of the marriage the breakdown cut Mrs. Macdonald off from Mr. Macdonald’s very accomplished income earning skills demonstrated by his ability to save over $4,000,000, after tax and legal fees, in the two and one half years between separation and trial. That lost financial stream could have provided for Mrs. Macdonald, as it may be expected to provide for Mr. Macdonald in the future, a wide variety of economic advantages including sufficient leisure to pursue intellectual and artistic interests in any part of the world.
[82] Applying the reasoning in the jurisprudence to which I have referred, I am of the view that the appellant is entitled to compensatory spousal support on the basis that she has been economically disadvantaged and the respondent advantaged by the marriage and its breakdown. The appellant’s role in the marriage reflected the parties‚Äô joint decision that her career would be secondary to the respondent’s and secondary to her role as wife and mother. As a consequence of their respective roles in the marriage, the appellant’s earning capacity has been negatively affected, and conversely, the respondent’s earning capacity has been enhanced. In cases such as this, the courts have recognized that the fact that the wife continues to earn a reasonable income post-separation does not disentitle her to spousal support (Myers; Francis; Allaire). Similarly, the fact that the appellant has received substantial assets does not of itself operate to deny her claim to spousal support (Macdonald). The respondent received roughly the same value in assets, and the asset division did not take into account the question of entitlement to spousal support.
[83] I turn now to consider the question of whether the appellant is entitled to non-compensatory support.
[84] While the appellant’s appeal of the dismissal of her claim for spousal support focused largely on compensatory principles, the appellant also advanced arguments concerning non-compensatory support. As noted earlier, it was the trial judge’s conclusion that the appellant had failed to show that spousal support is appropriate either on the basis of need or to ensure that she can maintain the marital standard of living‚Äù (para. 70).
[85] The judge’s conclusion that the appellant’s share of the assets would enable her to maintain the marital standard of living appears to have rested, at least in part, on the fact that she had not made the settlement of the asset division contingent on a spousal support award (paras. 43, 47).
[86] In my opinion, there was no proper foundation from which the trial judge could infer that the appellant correctly concluded that she could maintain the standard of living to which she was accustomed by relying on the assets she agreed to accept as her share of the settlement, even in the event her claim for spousal support was denied. The considerations and circumstances which prompted the agreement, the negotiations that may have taken place, or the concessions that were made in order for the agreement to be reached are not known. Settlements such as this one generally reflect some compromises between the parties but they have many potential advantages, including mechanisms for dividing the assets in ways that are more flexible than orders the courts may impose. In relation to the question of spousal support in this case, the salient fact is that while a settlement agreement was made dividing the assets, the appellant did not abandon her claim to spousal support as part of the settlement or in the court proceedings.
[87] The appellant’s annual expenses, estimated at $95,000, were found by the trial judge not to be exceptionally high or unreasonable‚ (para. 33). The judge concluded, based on the appellant’s post-settlement income and estimated current expenses that need‚Äù did not arise as her annual post-settlement income exceeded her expenses by nearly $40,000 (para. 46).
[88] In my opinion, the trial judge analyzed non-compensatory support with an unduly restrictive‚ and impermissibly narrow‚ view of need, contrary to appellate authorities such as Yemchuk and Hodgkinson. In defining need‚Äù in terms of the appellant’s ability to meet her own expenses, the trial judge failed to appreciate the relative nature of that concept in the spousal support context and its relationship to both the marital standard of living and the other spouse’s post-separation standard of living.
[89] While the trial judge did explicitly refer to the marital standard of living, this was primarily done in the context of compensatory support (paras. 47, 49, 70-71).
[90] If the appellant must encroach upon her capital to maintain a standard of living comparable to that which she enjoyed during the marriage, then arguably she is suffering hardship from the breakdown of the marriage and experiencing the loss of marital standard of living, since her capital would deplete over time and eventually she would be in a worse position than had the marriage continued. If that is so, whether the respondent has the means to assist her financially to live a lifestyle closer to what they shared as a couple is a relevant question (Allaire, at para. 21;Hodgkinson). The appellant submits that the respondent’s income, which he controls through draws from the business, is such that he can provide spousal support, and further, that the respondent has many more years of earning life ahead of him, whereas she has less than ten.
[91] The respondent argues that he is unable to draw more income from his business and that, in fact, that business has cash-flow and debt/equity problems. He further argues that as a result of the settlement agreement, he must purchase a new home, replace his RRSPs and that his business is not risk-free.
[92] What income can be derived from capital assets is obviously an important consideration in determining what funds may reasonably be available to maintain the lifestyle the parties enjoyed during the marriage. In this case, the trial judge found that the respondent was able to earn income on almost all of the assets he held after the agreed division, whereas the appellant could earn income from only about half of her assets (para. 51). With his income, the respondent was able to purchase another residence, much of which was financed.
[93] The question of whether the appellant should be expected to encroach on her capital in order to maintain a standard of living comparable to that of the marriage was not specifically addressed by the trial judge. The parties disagree over whether the appellant must deplete her assets to maintain her marital standard of living. The appellant argues that [b]y necessity, she will need to encroach on her capital to survive and she will never enjoy a standard of living like [Mr. Chutter], or remotely close to the one she enjoyed during their marriage‚Äù. In the respondent’s submission, [Ms. Chutter] has no need to pursue further income to maintain her marital standard of living‚Äù, and further [Ms. Chutter] has no need to encroach upon her capital to maintain the marital lifestyle‚Äù. The trial judge did not make a clear finding about whether the appellant would have to encroach upon her capital assets to maintain the marital standard of living, although that might be inferred from what the judge said in para. 49 of his reasons that the settlement assets held by the parties are capable, if utilized to provide housing and income in some combination, of providing both parties with a comfortable standard of living equivalent to the marital standard of living‚ (emphasis added).
[94] What is clear from the trial judge’s reasons is that the appellant is limited to her part-time employment income as a dental hygienist and as an Employment Insurance adjudicator, the annual rental income of $4,367 from the residential property owned by Chutter Developments Ltd., and her percentage of the rental income of Chutter Recreations Ltd., which was stipulated to be not less than $29,000 annually.
[95] One of the appellant’s arguments on appeal is that the trial judge was in error in taking into account notional income‚Äù on the RRSPs the appellant was going to have as a result of the settlement. As part of the settlement, the respondent agreed to arrange a spousal roll-over of his $484,000 RRSP, with the result that the appellant would have all of the parties‚ RRSPs, totalling approximately $1,000,000. For reasons I will come to later, I agree with the appellant’s argument that the trial judge ought not to have found or attributed income of $50,000 to the appellant on account of her RRSPs.
[96] The appellant’s medical problems prevent her from working a greater number of hours or days per week as a dental hygienist and, at her age and with her limited employment experience, it is unrealistic to assume that she will be able to retrain in order to achieve a higher income or income-earning capacity. By contrast, the respondent’s income and income-earning capacity are substantial. As a result of his earning capacity, he has been able to finance the purchase of a new residence and is looking to replace his RRSPs without depleting any of the capital assets he retained in the asset division.
[97] Based on the foregoing, I have concluded that the appellant has also made out a case for spousal support on a non-compensatory basis.
VI. The Spousal Support Advisory Guidelines
[98] It is only after entitlement to spousal support has been established that the Spousal Support Advisory Guidelines (Ottawa: Dept. of Justice, 2008) (the Guidelines‚) become relevant (Yemchuk, at para. 63). Once entitlement is established, it is necessary to go on to consider the quantum and duration of an award.
[99] The Guidelines were introduced in January 2005 as a draft proposal crafted by Professors Carol Rogerson and Rollie Thompson for the Department of Justice. The proposal was an attempt to bring some uniformity to the area of spousal support law. In July 2008, the Guidelines were released in their final form. The Guidelines are intended to reflect the state of the law, rather than to change it (Yemchuk, at para. 64; Fisher, at para. 98).
[100] The Guidelines are advisory only; they are not legislated. Nevertheless, they have been endorsed by the courts in British Columbia as a useful tool” in determining issues of quantum and duration of spousal support and have been deemed consistent with the law in British Columbia (Yemchuk, at para. 64). In Dunnigan v. Park, 2007 BCCA 329, 38 R.F.L. (6th) 241, this Court reiterated that the Guidelines were properly to be used as a guide to a range of awards, rather than as a set figure which must be applied or awarded” (para. 16). Similarly, in Fisher, the Ontario Court of Appeal endorsed the application of the Guidelines, and stated that with experience, the Guidelines will become accepted as a reliable tool for the resolution of many cases” (para. 101).
[101] In Redpath v. Redpath, 2006 BCCA 338, 33 R.F.L. (6th) 91, this Court stated that it is not an error of law to fail to apply the Guidelines in assessing a claim for spousal support but the Court went on to say that as a useful tool, the Guidelines may indicate whether a proposed award is in the range‚Äô of what should be a pattern of predictable maintenance awards‚ (para. 38) and suggested that where an award is substantially above or below the suggested range, the usual standard of review should be reformulated to permit appellate intervention unless there were exceptional circumstances (para. 42). See also McEachern v. McEachern, 2006 BCCA 508, 33 R.F.L. (6th) 315. In Fisher, the Ontario Court of Appeal commented that the Guidelines will assist in informing an appellate standard of review‚Äù (para. 102). In that regard, the Court said:
[103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. …
[102] This Court has increased the amount of spousal support in cases where the amount awarded at trial was below the amount suggested in the Guidelines. In Stein v. Stein, 2006 BCCA 391, 36 R.F.L. (6th) 13, (rev‚d 2008 SCC 35 but not on this point), the Court substituted the sum of $4200 per month for the sum of $2500 per month, largely based on the fact that the lower amount was outside of the Guidelines range of $3920 to $4883 per month. This Court has also upheld awards outside the proposed range when it is clear that the trial judge has considered theGuidelines, but chose not to apply them for reasons specific to the facts of the case: see Shellito v. Bensimhon, 2008 BCCA 68 at para. 24, 50 R.F.L. (6th) 263.
[103] I note that the Guidelines do not necessarily apply in all cases. The final form of the Guidelines lists a number of exceptions to their application, where neither location within the ranges nor restructuring can accommodate the facts of a particular case. The final version includes the original exceptions listed in the draft proposal and several new exceptions:
– Compelling financial circumstances at the interim stage;
– Debt Payment;
– Prior Support obligations;
– Illness and disability;
– The compensatory exception in short marriages without children;
– Property division, reapportionment of property in British Columbia;
РBasic needs/hardship: inability to meet basic need in shorter marriages under the without child support” and custodial payor formulas where the recipient has little or no income;
– Non-taxable payor income;
– Non-primary parent to fulfil parental role under custodial payor formula;
– Special needs of the child; and
РInadequate spousal support under the with child support” formula due to priority given to child support under s. 15.3 of the Divorce Act.
[104] There are also a number of situations that are not technically exceptions”, where the formulas do not necessarily apply but may still be helpful:
– Payor income above the $350,000 ceiling;
– Payor income below the $30,000/$20,000 floor;
– Prior agreement or court order;
– Post-separation income increase of the payor;
– Post-separation income reduction of the recipient;
– Remarriage/re-partnering of the recipient or payor; and
– Subsequent children of the payor.
[105] After the draft proposal was released, this Court affirmed a spousal support exception in cases where a sufficiently large reapportionment order is made under the property provisions of Part 5 of the Family Relations Act (Tedham; Narayan; McEachern). As noted above, this exception has been incorporated into the final revision of the Guidelines. The exception is limited to British Columbia because it is only our statute that permits unequal division of property on grounds overlapping with spousal support, i.e., to recognize and adjust for economic disadvantage and lack of self-sufficiency at the end of a marriage under ss. 65(1)(e) and 65(1)(f): see C. Rogerson & R. Thompson, Spousal Support Advisory Guidelines: Report on Revisions (Ottawa: Dept. of Justice, 2008) at 10, online: Department of Justice <http://www.justice.gc.ca/eng/pi/pad-rpad/res/spag/s-p/index.html>.
[106] With respect to their rejection of an explicit exception for high property awards, the authors of the Guidelines said at s. 12.6.2:
Some have suggested that a high property award should constitute an exception for spousal support purposes. On this view, property and support are alternative financial remedies that can be substituted, one for the other, so that a high property award always justifies lower spousal support. While this view does find some acceptance in the case law, so too does the more compelling view that property and support are governed by distinctive laws and serve different purposes and that a high property award should not in and of itself dictate a significant reduction of spousal support. Recognizing high property awards as an explicit exception would, in our view, inappropriately entrench a contested view. Again, we have to leave the law to develop further in this area.
If there were an exception of this kind, it would result in an amount of spousal support set below the low end of the range or for a shorter duration, where there is a high property award.
It should be kept in mind that the Advisory Guidelines can already accommodate some of these high property” concerns, without any exception. First, each spouse is expected to generate reasonable income from his or her assets and income can be imputed where a spouse fails to do so. The income imputed will affect the operation of the formula (Chapter 6). Second, as discussed above, property-related concerns may, in some cases, determine whether support is fixed at the upper or lower ends of the ranges for amount or duration, e.g. an absence of property to be divided or a large amount of property or continuing equalization payments (Chapter 9). Third, many high property cases are also high-income cases, bringing into play the ceiling above which the formula will not necessarily apply (Chapter 11).
Finally, there will be some cases where a high property award means no entitlement to spousal support, as the recipient of the property will thereby become economically self-sufficient, overcoming any disadvantage or need at the end of the marriage (Chapter 4). This is not an exception” to the Advisory Guidelines, however, but an instance where the threshold requirement of entitlement is not met, so that the Advisory Guidelines are not engaged.
[107] Entitlement to spousal support is the threshold issue in this case but once entitlement is established, the Guidelines become a helpful guide when determining the quantum and duration of support. The fact that this is a high asset case does not make the Guidelines irrelevant.
VII. Application of the Guidelines to the case at bar
[108] Under the Guidelines there are two basic income-sharing formulas for determining quantum and duration of spousal support: the with child support” formula, which applies in cases where there is a concurrent child support obligation; and the without child support” formula, which applies in cases where there are no dependent children. In this case, the parties’ son no longer resides with either party and the without child support” formula applies. The Guidelines specifically state that the without child support” formula covers long marriages where there were children, but they are no longer dependent (see Chapter 7 of the Guidelines).
[109] Under the basic without child support‚Äù formula, the Guidelines provide that the amount of support should fall between 1¬?% to 2% of the difference between the spouses‚Äô gross incomes for each year of marriage, up to a maximum of 50%. The range remains fixed for marriages 25 years or longer, at 37.5% to 50% of gross income difference. The duration is ¬? to 1 year of support for each year of the marriage, with duration becoming indefinite after 20 years (Guidelines at s. 7.1).
[110] In this case, the parties married in May of 1975 and the parties separated in September 2003. As the parties were married for over 25 years, the applicable range of the amount of spousal support is 37.5% to 50% of gross income difference. One of the issues in this case is the calculation of each spouse’s gross income, a matter which the Guidelines recognize as critical‚Äù to the proper application of the Guidelines (Guidelines at s. 6).
[111] The Guidelines determine income according to the definition under the Federal Child Support Guidelines, including Schedule III adjustments. In some cases, it may be necessary to impute income to either the payor or recipient spouse (Guidelines at s. 6.1). The without child support” formula uses gross income figures rather than net (Guidelines at s. 7.4).
[112] In this case, the trial judge found the wife’s income in 2006 to be $88,691, of which $39,000 was interim spousal support. Under the Federal Child Support Guidelines, any amount of spousal support received is not included for the purposes of calculating income. The remaining $49,000 was employment income earned by working three days a week as a dental hygienist and two days a month as an adjudicator of employment insurance disputes (see paras. 6-7). The husband’s employment income in 2006 was about $156,000 (see para. 8).
[113] The submissions of the parties at trial, some of which were repeated on the appeal, were referred to in the trial judge’s reasons. The trial judge considered these points and found that the parties‚ post-settlement incomes were as follows (at para. 27):
¬? $214,000 for the respondent ($156,000 employment + $58,000 rent)
¬? $133,000 for the appellant ($49,000 employment + $34,000 rent + $50,000 annual interest on the RRSPs)
[114] The trial judge concluded that income should not be imputed to the parties for some of the reasons urged by counsel. The appellant testified at trial that she had security concerns about renting out a portion of her home and, in the circumstances of this case, the judge’s refusal to impute income from rental of part of her home is not unreasonable. Nor am I persuaded that the trial judge erred in refusing to impute income to the husband on the basis that he has the means to borrow from Whitewater Industries Ltd. to create income for himself. The retained earnings‚Äù in Whitewater’s financial statements represent equity in the company, not cash‚Äù.
[115] On appeal, the appellant takes issue with the judge’s inclusion, as part of her income, of the $50,000 representing interest‚Äù at five percent on her post-settlement RRSPs holdings. In his reasons, the trial judge said that for purposes of comparing their respective incomes post-settlement, the fact that her RRSPs are tax sheltered does not exclude it from consideration as such‚Äù (para. 27). Later in his reasons the trial judge stated that neither the real estate nor the RRSPs require full time attention to maintain their value and over time these assets should appreciate‚Äù (para. 55).
[116] What the trial judge overlooked is that if the interest he attributed to the appellant’s RRSPs was, in fact, withdrawn by her to provide income, the RRSPs would not appreciate in value, as he stated. Moreover, to suggest that any appreciation in value in an RRSP ought to be treated as income is wholly at odds with the federal income tax legislation which established registered retirement savings plans. In my opinion, the trial judge was in error in considering the $50,000 as part of the appellant’s income.
[117] If the notional interest on the RRSPs were excluded, the amount of spousal support would be calculated under the Guidelines, as follows:
Gross income difference
(Respondent’s income) ‚Äì (Appellant’s income) = Gross income difference
$214,000/year – $83,000/year = $131,000/year
Percentage range
Fixed at 37.5% to 50% for marriages over 25 years in length
Application of the percentage range to the gross income difference
37.5% x $131,000/year = $49,125/year ($4,093.75/month)
to
50% x $131,000/year = $65,500/year ($5,458.33/month)
[118] The length of the marriage is defined in the Guidelines as the period of cohabitation. However, for marriages over 25 years in length, the duration of spousal support is indefinite (Guidelines at s. 7.5). The authors of the Guidelines, however, emphasize that indefinite” does not mean permanent (Guidelines at s. 7.5.2):
In using the term indefinite‚ we simply adopted a word that had been used for years in spousal support law to mean an order for support without a time limit at the time it is made. Under the Advisory Guidelines an order for indefinite support does not necessarily mean permanent support, and it certainly does not mean that support will continue indefinitely at the level set by the formula.
Under the current law, orders for indefinite support are open to variation as the parties’ circumstances change over time and may also have review conditions attached to them. The Advisory Guidelines do nothing to change this: indefinite‚ support means support that is subject to the normal process of variation and review.
Through the process of review and variation the amount of spousal support may be reduced, for example if the recipient’s income increases or if the recipient fails to make reasonable efforts to earn income and income is imputed. Support may even be terminated if the basis for entitlement disappears. It is true that current law supports the idea that after long marriages spousal support will often be permanent, even if the amount is subject to reduction to reflect the recipient’s obligation to pursue self-sufficiency.
[Emphasis in original.]
[119] In summary, an application of the without child support” formula under the Guidelines in this case would result in a range of support of $4,093.75 per month to $5,458.33 per month for an indefinite duration, subject to variation or possibly to review.
[120] The Guidelines formula is intended to apply to initial determinations of spousal support. An order may include provisions for review or variation in amount at a specified point in time and the Divorce Act provides for variation if an applicant demonstrates an unanticipated change in circumstances. The Guidelines also provide for restructuring, which allows amount and duration to be traded off against one another as long as the overall value of the award remains within the total amount generated by the formula when the amount is multiplied by duration: Chapter 10 of theGuidelines. In this case the formula would generate an amount of support for an uncertain duration (Guidelines at s. 7.5) and restructuring does not appear to hold any advantages.
[121] The award of spousal support chosen should reflect the objectives in the Divorce Act. The Guidelines identify a number of factors for consideration in determining the appropriate amount of spousal support within the calculated range, which can be summarized as follows (seeGuidelines at s. 9):
1. A strong compensatory claim may be a factor that favours a support award at the higher end of the ranges for amount and duration.
2. Where the recipient has limited income and/or earning capacity due to age or other circumstances, the recipient’s need may warrant an award at the higher end of the ranges for amount and duration. An absence of need may suggest an award at the lower end.
3. An absence of property to be divided might suggest an award at the higher end; an unequal division in favour of the recipient may indicate an award at the lower end is more appropriate.
4. The need and limited ability to pay of the payor spouse may push an award to the lower ends of the ranges.
5. Self-sufficiency incentives may push in either direction.
6. Low work incentives for the payor may push an award to the lower ends of the ranges, in that the marginal gain in net income from additional income earned may be negligible.
[122] The foregoing summary is not intended to exclude consideration of other factors. In other words, it is an inclusive, not a closed, list.
[123] Taking into account the facts of this case and the various factors referred to in the Guidelines at s. 9, it appears to me that this is a case in which an order for spousal support ought to be made, although not in the amount sought by the appellant of $4,000 per month. The appellant has a good claim for compensatory support and her income and income-earning capacity are much less than those of the respondent. The appellant does have a base of assets from which she can derive income but the same is also true of the respondent. The respondent is able to pay monthly support and if the appellant receives some monthly support from the respondent, both parties would be able to have a lifestyle similar to the pre-separation standard. There are two factors that militate in favour of an amount lower than the suggested range in the Guidelines. The appellant has the advantage of having a very substantial sum in RRSPs and any appreciation in the value of the plans, whether though interest, dividends, or increase in value of equities, is tax-sheltered until withdrawal. Unlike the respondent, the appellant is not faced with having to save money to ensure an adequate income upon retirement. The other consideration is the fact that the appellant’s home, valued at between $1,850,000 and $1,950,000, is a non-income producing asset and is increasingly likely to exceed her needs as she approaches retirement. In assessing the means and needs of the appellant in this case, it appears to me that the extent to which her choice of housing exceeds her needs, while still being commensurate with the marital standard, should also be considered in arriving at the amount of spousal support to be paid.
[124] In my view, the sum of $2800 per month would be an appropriate amount to order for spousal support in this case. That would provide the appellant with an annual income of $116,600 ($49,000 in employment income, $34,000 in rent and $33,600 in spousal support) and the respondent with an annual income, less the support payment, of $180,400.
VII. Conclusion
[125] I would allow the appeal, set aside the order of the trial judge, and order that the respondent pay to the appellant $2800 per month in spousal support, effective 1 July 2007.
