Vancouver spousal support review lawyer, Lorne MacLean, Q.C., helped set the Canadian law on spousal support reviews in the Supreme Court of Canada’s national groundbreaking decision in Leskun. Mr. MacLean also successfully terminated spousal support for a former husband in the recent decision in Whitmore after a very short period of payment. 溫哥華和列治文評估優良家庭律師
Mr. MacLean’s aggressive and cogent legal representation has led to many outstanding results including this one specifically referred to in the official government publication of the user’s guide to the new and improved final version of the SSAG.
The Spousal Support Advisory Guidelines:
A New and Improved User’s Guide to the Final Version
For an example where support was terminated at a point far short of the high end of the durational range because the wife was found to have become self-sufficient see Mills v. Elgin, [2009] B.C.J. No. 2310, 2009 BCSC 1607
(15 year relationship with 3 children; spousal support terminated on variation application
six years after separation when husband earning $100,000 and wife earning $46,000).
Our spousal support lawyers are on the cutting edge of tough spousal support case under both the “with” and the “without” spousal support formulas. People often fail to include time limits in settlements or arguments or agree to continuing orders for support in disregard of the SSAG rules. The results can be devastating. Homemade agreements without independent legal advice often result in a financial horror show. Contact us at our offices in Vancouver, Surrey, Kelowna and Fort St John if you are a paying or a receiving spousal support spouse.
Different tests apply for time limited spousal support orders under the “with” and “without” child SSAG FORMULA.
The final version of SSAG makes it clear that while time limits can be imposed at an initial trial if there are no children in the care of a recipient spouse different considerations apply if the recipient is caring for their children.
UNDER THE “WITH CHILD” FORMULA Four basic points about duration need reiteration:
- The initial order under this formula should be
“indefinite (duration not specified)”
. Any time limits should only be applied through the process of variation and review. - The with child support formula is fundamentally compensatory, which means that most time limits should fall towards the higher end of the range, not the lower end.
- In shorter marriages, the basis for compensation is not just the past disadvantage flowing from the spouse’s disproportionate assumption of child-rearing responsibilities (relatively short), but primarily the continuing disadvantages that flow from the spouse’s ongoing and future responsibilities for child-rearing.
- In shorter marriages with younger children, then, the length of the marriage is a very poor indicator of the depth of the recipient spouse’s disadvantage.
Along with imputing income, the most frequent mechanism used in our law to promote self-sufficiency has become the review order, a form of order that was developed afterMoge and once described as “the halfway house between indefinite orders and time-limited orders”
.[126] The review order is grounded in s. 15.2(3) of the Divorce Act, the court’s power to “impose terms, conditions or restrictions in connection with the [spousal support] order as it thinks fit and just”
. In its 2006 Leskun decision, the Supreme Court of Canada affirmed the use of review orders and identified as three examples justifying their use, “the need to… start a program of education, train or upgrade skills, or obtain employment”
.[127] As part of the infrastructure of support law, review orders are a critical element of the Advisory Guidelines.
Review orders can permit a court to monitor a recipient’s progress towards self-sufficiency, without any need to prove a change in circumstances. Review hearings can be scheduled at critical times, like the completion of a training or education program or after a child starts full-time school or after a period of job-seeking. After Leskun, the terms of review should be more clearly set out in the terms of the order, “to tightly circumscribe the issue”
for the review hearing and thus to avoid relitigation. The court can set out in the court order, or the parties in an agreement, the recipient’s plan, which will form the basis for the review.
Where there are serious questions about the self-sufficiency efforts of a recipient, a court can even make a “terminating review order”
, i.e. spousal support is time limited, but the time limit is made subject to review and possible extension. This offers an example of a “softer”
use of time limits in compensatory cases.
