Vancouver Spousal Support and a New Emphasis on the Obligation of the Spousal Support Dependant Spouse to Make Reasonable Efforts to become Self Sufficient
As top rated Vancouver spousal support lawyers with four offices across BC and a toll free line at 1 877 602 9900we are intrigued by the new emphasis on self sufficiency being implemented by the BC government in our new Family Law Act which will take effect on March 18, 2013. We thought we would review what the government says the new BC spousal support rules are on self sufficiency that allows each party to finally go their separate ways. Lorne MacLean, Q.C. argued in the Supreme Copurt of Canada that the family law legislation affects Canadians more than any other legislation in Canada. in the infamous Supreme Court of canada case of Leskun, MacLean argued that the support legislation should be applied by the courts to encourage payors to remain working to their full capacity rather than slacking off or quitting their jobs to pay less while at the same time ensuring recipient spouses do not dog it to try obtain more support. By applying this approach Canada as a nation is stronger and to do less weakens us.
The BC governments explanatory notes to their new Act state Spousal Support Advisory Guidelines are not referred to in the Family Law Act and will remain advisory. Although the guidelines are widely used in British Columbia, they do not fit every situation and cannot be applied in all cases.
The summary paper goes on to state that the new Family law Act retains the self-sufficiency obligation by providing, as an objective, that a spouse becomes self-sufficient in a reasonable period of time. This, in conjunction with the ability provided in section 166 to consider misconduct that prolongs or aggravates the need for spousal support, ensures that the recipient of support must make reasonable efforts to reduce the need for support.
Spousal misconduct such as having an affair or treating a spouse unkindly will not be relevant to a support award BUT the court may to consider misconduct of a spouse where a spouse has engaged in conduct that either prolongs the need for support or reduces the means from which support could be paid. For example, support may be reduced where the recipient refused to look for or accept appropriate employment. Alternatively, a payor’s request to reduce the support paid may be refused where they have, without excuse, gone from full-time to part-time employment or retired early.
Current State of Spousal Support and the Obligation of the Dependant Spouse to make Reasonable Efforts to become Self Sufficient
After separation, a spouse seeking spousal support must make reasonable efforts to achieve self sufficiency. This is in keeping with the statutory objectives of spousal support pursuant to the Divorce Act (Canada) which include that an order for spousal support should, in so far as practicable, promote the economic self sufficiency of each spouse within a reasonable period of time and our new Family Law Act.
Although some earlier cases referred to this as an obligation or duty to become self sufficient, more recently the Courts have clarified that failure to achieve self sufficiency is simply one factor to take into account when determining entitlement to and the appropriate amount of spousal support, and that there is no absolute obligation or duty to become self sufficient, only to make reasonable efforts towards this.
What constitutes “reasonable efforts” in a particular case may depend on factors such as the length of the marriage, the role played by the dependent spouse including childcare, their age and health, the size of the property settlement, and a realistic assessment of the spouse’s potential for self sufficiency taking into account their education and employment history.
Where a spouse has not yet achieved self sufficiency by the time of trial, the Court can make a review order which requires that a hearing be held at some specified future date to review efforts made to fund employment and/or retrain or re-educate, or a “step down” order where support is decreased over a period of time. The new family law Act emphasizes this is an option and follows Lorne MacLean Q.C.’s arguments from the Leskun case in this respect.
A failure to achieve self sufficiency is only one factor to be taken into account in determining entitlement to and the appropriate level of support. Where an order for spousal support is based on compensatory grounds, it has been held that the support should continue until adequate compensation has been made, even if the spouse achieves a degree of self sufficiency. A support order founded on compensatory grounds includes those which are intended to compensate the dependant spouse for lost career/job opportunities as a result of the marriage, such as foregoing a career to assume responsibility for home and childcare, and/or for enhancing the career of the other spouse.
Where no compensatory support principles are applicable, a dependant spouse is expected to pursue a reasonable career path.
Recent Termination of Support Win in a Long Marriage
Lorne MacLean, founder and managing partner of the MacLean Family Law Group, recently successfully argued to limit further spousal support on a review application brought by a dependant spouse seeking that payments continue indefinitely on the basis that she was not self sufficient and that there was no prospect of improvement in her economic condition. The payor spouse had paid “step down” spousal support for 5 years following a marriage of over 20 years, pursuant to a separation agreement that then provided for a review of the support obligation. Although at the time of the review the Claimant had not achieved self sufficiency due to no fault of her own but rather a decline in the industry she had chosen to enter, and despite founding her claim for further spousal support both on compensatory principles and need, the Court held that it was unreasonable of her to adhere to a career plan that was demonstrably unable to result in self sufficiency, and refused her application for indefinite spousal support, instead ordering that support would cease after a further 12 months. Contact Mr. MacLean Q.C. to learn more about this decision of Whitmore.
If spousal support is at issue in your family law case, it is important to seek legal advice whether you are the spouse seeking support or the spouse being asked to pay, so that you understand your rights and obligations. Too may people overpay or bargain their rights away foolishly.
