The Supreme Court of Canada defined the limited situations when a BC spousal support review can be ordered on BC spousal support awards in the Leskun. The British Columbia spousal support review order is still used as a tool to encourage a reluctant spouse to take steps to move in part or in whole towards self- sufficiency.
The recent decision of Reggelsen v. Reggelsen, 2009 BCSC 1790 ‚Äì 2009/12/29 follows a line of cases that uses BC spousal support reviews to encourage a spouse to work toward self sufficiency when the spouse is hesitant or refuses to do so without the court nudging them towards this goal by way of reducing a BC spousal support award at the review on the basis of the spouses’s lack of effort to reenter the workforce.
The cases can specify the terms of review and can place the onus on one spouse to show they have made reasonable efforts to reenter the workforce. The problem remains however in setting the income level a spouse who has refused to enter the workforce can earn. The court must look at the education, work skills and work history as well as evidence of existing jobs the spouse could get and then attribute and income to them pursuant to section 19 of the Child Support Guidelines (they apply to spousal support too!).
Although the Supreme Court of Canada established that reviews should rarely be ordered, the courts in BC have continued to use reviews as a useful tool to allow a court to deal with future issues related to spousal support at a time when the actual living arrangements and income and expenses of the parties will be able to be correctly determined. It is often difficult to predict a career path for a spouse who is reentering the work force after a long period of time or who has health issues that impact on their ability to work or how a payor’s career might be impaired by a poor economy or changes in the marketplace. The case of Reggelsen applied the review principals to reduce spousal support by a few hundred dollars a month but the court refused to terminate support as the husband requested.
We provide the key case extracts below:
He found the defendant’s Guideline income to be $87,000 with an income of $70,200 for the purpose of s. 7 expenses. He ordered that the defendant pay $1,400 per month in spousal support payments and that each party had the right to apply to review the amount in two years‚Äô time without the need to prove a material change in circumstances. He further ordered the plaintiff to pay child support in the amount of $67 per month based on a Guideline income of $10,000, and that she pay certain special and extraordinary expenses arising for the children in the future within 14 days of receiving receipts from the defendant verifying the expenses had been made.
[6] The following portions of the 2007 decision are important to the issues raised in the defendant’s present application: (see Reggelsen v. Reggelsen, 2007 BCSC 219).
[14] The plaintiff is now 52 years of age, has a grade 10 education and has not worked outside the home since 1990, except for a few weeks in the spring of 2003 when she worked for Elections Canada. It has been more than two years since the parties separated, but the plaintiff has not yet obtained employment. She has made some (but not a large number) of job applications for employment which would likely yield a minimum wage. The plaintiff has not undertaken any program for training which might improve her prospects for obtaining employment.
[15] The plaintiff’s position was not clearly articulated by her counsel at the hearing. But I take her position to be this:
(a) She suffers from an emotional and psychological condition which, while it does not incapacitate her from working, it does impair her ability to work full time.
(b) She is too old to obtain job training which would allow her to obtain employment which would pay higher than minimum wages of about $8 per hour.
…
[18] In my opinion, the evidence does not support the plaintiff’s position on the question of review. The medical and other evidence she has presented falls far short of proving incapacity to work. In my opinion, the evidence barely establishes that her capacity to work is impaired to some uncertain extent, by her emotional condition. Indeed, the plaintiff herself does not allege that she is totally incapacitated from working. I also conclude that the plaintiff has failed to make reasonable efforts to obtain gainful employment. The defendant has had the primary care of the children for more than two years, and so her opportunity to search for work has been almost unrestricted. I recognize that the plaintiff faces difficulties associated with her age, her long absence from the work force, her low level of education and her apparent psychological problem.
[19] In my opinion, there should be a review of spousal support in two years time, which may be initiated on the application of either party. The issues on review will be whether the plaintiff remains entitled to have spousal support payments continue, and if so, what the monthly amount of such payments should be, and how long such payments should continue. The spousal support payments will continue until the review is concluded, subject to the discretion of the judge hearing the application. There will, of course, be no need to prove a change in material circumstances as a condition precedent to the review. The onus of proof on these issues will be on the plaintiff. This order would not preclude an earlier application to vary, based on a material change of circumstances.
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[34] I have already expressed my opinion that the plaintiff is capable of earning some income. For the foreseeable future, her earnings will likely be at or about the minimum wage level. If she was capable of working full time, she would earn approximately $16,000 per year at minimum wage. However, her earning capacity is impaired to some extent by her psychological condition. In my opinion, income should be imputed to the plaintiff, and the amount should be $10,000 per year.
Discussion of Spousal Support
[7] The position of the defendant on the issue of spousal support is that such support should cease or, at least be reduced. The defendant based his application on the ground the plaintiff has taken no action since the 2007 decision was issued to look for and obtain work and accordingly the review provided for in the order is appropriate.
[8] The 2007 decision clearly contemplated that the plaintiff would take reasonable steps to be in a position to support herself consistent with her obligations to become self-sufficient under both the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Relations Act, R.S.B.C. 1996, c. 128. The Court was critical of her for not taking such steps and described the evidence she put forward to support her lack of ability to work as falling far short” of proving incapacity. The Court made it clear the onus of proof at a review application would be on her to demonstrate such lack of capacity. The 2007 decision was premised in part on the fact the plaintiff should have been more self-sufficient at the time of the hearing and that by the time of a review two years hence she would be capable of an even greater degree of self-sufficiency.
[9] At the present time the plaintiff remains unemployed. She continues to maintain that her psychological condition has not changed since the 2007 decision because of the emotional and verbal abuse she says she was subjected to during the marriage. She says that she is still undergoing counselling and medical treatment and that her medical condition remains such that she is incapable of finding work. There was medical evidence to this same effect before Halfyard J. at the time he made the 2007 decision. It is apparent he did allow for a reduced earning capacity based on her psychological condition at that time. (see para. 34 of his reasons).
[10] The evidence I have before me of the plaintiff’s medical condition consists of a statement from the plaintiff in her affidavit and a note from her attending physician. In her affidavit the plaintiff says she is unable to work because her self-esteem has been destroyed as a result of the psychological, emotional and verbal abuse she was subjected to by the defendant over the course of their marriage. The defendant denies her allegations.
[11] The note from her attending physician, written on a one page Return to Work/School Certificate” reads: Unable to seek/or work + unable to work due to medical reasons”.
[12] In my view, the plaintiff’s self-serving statement she is unable to work and the doctor’s note do not meet the onus of proof on the plaintiff to demonstrate she is incapable of working. There is no indication in the medical note of when, how often or how long her attending physician has treated her. The note contains no diagnosis as to the reasons why she is unable to seek/or work‚Äù nor does it provide any prognosis nor does it provide information whether there is any ongoing treatment plan to address the plaintiff’s health issues.
[13] In Luney v. Luney, 2007 BCCA 567, the Court of Appeal was faced with a similar situation. In that case, the payer spouse claimed he was unable to work due to ongoing back problems. At para. 22, the Court quoted from the trial decision of Martinson J:
[22] Applying these cases to the case at bar, and considering in particular Mr. Luney’s income-earning capacity and the length of the marriage, Martinson J. concluded that Mr. Luney had not shown it would be grossly unfair not to reduce the arrears of spousal maintenance prior to November 1, 2003. With respect to the arrears of child support, she considered specifically each of the three factors listed in s. 96(2), but was not persuaded by Mr. Luney’s evidence or arguments. First, she found that the evidence did not permit her to conclude that Mr. Luney had been unable to obtain any type of employment‚Äù after leaving his law firm. In her analysis:
He has asked the court to conclude that he was medically unable to earn any income during that time period. Yet, he has not presented a medical legal report in the proper form to support that conclusion. He says he could not afford to do so. However, the onus is on him to meet the s. 96 test. The medical evidence he did provide does show that he has had ongoing lower back problems and that he had surgery to remove a very large osteophyte. The only evidence other than his own assertion that he could not work from October 2003 until early 2005 is the statement of Dr. Hooge in the letter to which I have referred. Dr. Hooge does not provide the factual basis upon which he reaches his conclusion. I do not know if he was aware that Mr. Luney was working on an LLM during this time frame. As a result, the opinion of Dr. Hooge in this respect is of little assistance to the Court. Dr. Mallory said that earlier on Mr. Luney could not work during an attack”. I note that he says that when he saw Mr. Luney in July 2003 he was doing fine. [At para. 54.]
[14] I find Martinson J’s comments applicable to the present case. Further, the evidence before me on this issue is not new. The plaintiff’s ability to work was fully addressed by Halfyard J. at the time he made the 2007 decision. The only effort the plaintiff has apparently made to find any work occurred when she moved to Alberta for a short time in 2008 to look for work. She does not indicate what work she applied for and whether she has looked for work since returning to British Columbia.
[15] The plaintiff owns a small apartment which she received from a division of the family assets. The assessed value was $173,200 in 2008. She receives a monthly rental income of $950 but says after mortgage, strata fees and other expenses she nets $60 per month. The plaintiff rents a room from a Mr. Flanders and pays $400 per month rent. There is evidence she and Mr. Flanders are in a relationship and living together. The plaintiff denies they are living “common-law”.
[16] The plaintiff’s taxable income for 2008 was $17,900, which includes spousal support payments made by the defendant totalling $16,800. The plaintiff owes taxes on this amount of slightly in excess of $1,000.
[17] The defendant asks the Court to impute income of $16,640 to the plaintiff. The defendant bases this amount on what his counsel submits represents full-time work of 40 hours per week at a minimum wage of $8 per hour.
[18] The defendant works as first engineer with BC Ferries. His current Guideline income is $92,300. As stated, the two children, Jeff and Jessie, are dependant and live with him. He has been paying spousal support of $1,400 per month pursuant to the February 19, 2007 order of Halfyard J.
[19] Given the absence of any satisfactory evidence the plaintiff suffers from a substantiated incapacity which would prevent or limit her ability to take reasonable efforts to become self-sufficient within the terms of the order of Halfyard J., I am of the view the spousal support should by reviewed and reduced from its current level.
[20] I am not persuaded spousal support should cease immediately as requested by the defendant. I have no evidence from either the plaintiff or defendant to suggest work is available for the plaintiff on a full-time basis as suggested by the defendant. I do not know whether full or part-time work is available in the region in which the plaintiff resides. However, there is an onus on the plaintiff to establish she has made reasonable efforts to search for work and to become self-supporting. She has not met this onus.
[21] Based on the evidence before me, I am prepared to impute an income to the plaintiff of $11,500 in 2010, and to impute a further income of $12,500 in 2011. Taking all factors into consideration and the objectives for spousal support orders set out in s. 15.2(6) of the Divorce Act, I order that spousal support payable by the defendant be reduced to $1,112 in 2010, and $1,100 in 2011. Payments will commence on the first day of each month and shall continue until further order of the Court. Either party will have liberty to apply two years from the making of this order to vary the amount of spousal support. I would impose the same terms on the plaintiff as imposed by the 2007 decision: that is, that she will have an onus of establishing she has taken all reasonable steps to establish her economic self-sufficiency under s. 15.2(6) of the Divorce Act.
