Does a Vancouver stay-at-home parent seeking BC spousal support have the right to remain in this role after the breakdown of a short marriage? Does the BC homemaker have a right to a high amount of spousal support without responsibility to financially support the children and for how long?
Stay-at-home parenting by single parents is a complex issue where the courts provide no black and white answers. The question is not whether a parent has the right to stay home but rather if the other parent has an obligation to financially support that parent to be able to continue in that role. The courts recognize that the changes caused by marriage breakdown can mean changes to the roles of the spouses in order to adjust and manage as two parents in separate homes. This often means that both parents will need to be employed as managing two households is more costly in family expenses than in an intact family unit. Our top rated spousal support lawyers can answer your questions now if you call us toll free at 1 877 602 9900.
Section 15.2 (4) of the Divorce Act states 3 factors the courts must consider when determining an order for spousal support:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
o (a) the length of time the spouses cohabited;
o (b) the functions performed by each spouse during cohabitation; and
o (c) any order, agreement or arrangement relating to support of either spouse.
Section 15.2 (6) describes the objectives of spousal support with relation to amount and duration:
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
o (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
o (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;
o (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
o (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The Supreme Court of Canada states that all four factors must be equally considered in each spousal support case with no one factor prevailing over another.
Entitlement to spousal support is determined by the courts to be either compensatory or non-compensatory. Compensatory support reflects the lost earning capacity of the recipient spouse, usually caused from childbearing or the career demands of the paying spouse. Non-compensatory support is largely based on economic hardship or a decline in the standard of living since separation. The defining factor for spousal support claims in divorces with children is loss or need (in some cases both) combined with the length of the marriage.
The Divorce Act states that the promotion of economic self-sufficiency must be “practicable”. A number of questions can be asked to help determine the practicability of a single stay-at-home parent to become self-sufficient including:
a) does the recipient spouse suffer from any medical condition that may prevent him or her from retaining employment?
b) do any of the children suffer a medical condition or learning disability which requires a parent to remain available to that child at all times? Is this supported by any medical or educational professionals?
c) did the recipient spouse leave his or her career due to obligations of the marriage?
d) are there employment options available to the recipient spouse which suit his or her skills? Can s(he) obtain the required skills?
e) what is the education level of the recipient spouse and has s(he) made efforts to retrain or reeducate to be able to obtain more fulfilling employment?
f) does the recipient spouse require child care if s(he) is working and is this available to him or her?
g) are there any government funded training or employment programs available to the recipient spouse which could assist him or her in re-entering the workforce?
In the case of McArthur v. Besier, 2010 BCSC 265, a wife’s spousal support was terminated based on her lack of effort to gain employment. The parties were married for almost 6 years and there were two children of the marriage, aged 9 and 5. The parties agreed to a consent order which set spousal maintenance to be awarded to the wife for a period of 3 years with her being entitled to no further spousal maintenance after that date.
The wife applied for a variation of spousal and child maintenance nearing the end of this 3 year period basing the application on unforeseen circumstances due to the two children’s learning disabilities. The Honourable Justice Saunders states at paras. 8 and 9:
[8]I have reviewed the plaintiff’s affidavits dated November 27, 2009 and January 20, 2010, which were filed in support of the present application, and the previous affidavits on file. The plaintiff has not worked since she became pregnant with the parties’ first child in 2001. She has been out of the work force for nine years. She points to learning difficulties and issues with motor control which her daughter is having, and she describes her young son’s hyperactivity. She deposes that she believes that it would be in the best interests of her children for her to be able to stay at home.
[9]The plaintiff is entitled to seek variation of the order; but such an application must be supported by evidence. I must proceed on the basis that the order was correct in the circumstances which then prevailed: Haigh v. Haigh, [1997] B.C.J. No. 1587 (C.A.). The plaintiff must show that there have been changes in circumstances which are significant, unforeseen, and of a continuing nature: Murphy v. Murphy, 2000 BCSC 974 (CanLII), 2000 BCSC 974 at para. 19.
The Honourable Justice Saunders explained that the consent order between the husband and wife did not include any terms stating that the wife would be fully self-sufficient by the end of the support period; therefore, self-sufficiency wasn’t an elementary factor to the order. The wife had relied upon the case Morgan v. Morgan, 2001 BCSC 874, but the consent order in this case contained a specific clause stating that the wife would be fully self-sufficient by the end of the support period. The Judge concluded at paras. 15 and 16:
[15] In the present case, there is no evidence of a similar presumption underlying the October 2005 consent order. I therefore cannot treat the plaintiff’s present employment status as grounds for varying the termination which the parties previously agreed to. That would be unfair to the defendant, who is entitled to some degree of finality.
[16]The plaintiff’s affidavit materials do not disclose any other evidence sufficient to support a claim for variation of spousal support. There is no evidence of continuing hardship arising from the breakdown of the marriage. None of the affidavit materials demonstrate that the children have particular needs that require the plaintiff to remain outside the workforce. The plaintiff has already had the benefit of approximately four years of spousal support, following the break-up of a marriage which lasted less than six years. By this point, steps ought to have been taken by the plaintiff to move towards economic self-sufficiency. If that would entail incurring child care expenses, she might then exercise her right to apply for an order that the costs associated with child care be shared between her and the defendant as extraordinary expenses. A desire to remain at home and nurture one’s children may be admirable, but not necessarily realistic in economic terms. In this case it is a personal choice, the cost of which should not be borne by the defendant.
The wife’s application for spousal support was denied. Child support was varied based on the husband’s increased income to reflect the proper amount as stated in the child support guidelines.
Section 26.1 (2) of the Divorce Act states:
Principle
(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.
The breakdown of a marriage does not entitle a recipient spouse to the same idealistic life of forever being the stay-at-home parent while his or her spouse bears the obligation of providing financial security. This is due to one major factor-the stay-at-home parent no longer has a spouse. Entitlement to support is to assist the recipient spouse in building his or her own self-supporting life while still allowing the children of the marriage to grow in a financially stable environment based on what BOTH spouses can feasibly provide.
If you have a spousal or child support issue that needs to be addressed, consult one of our highly rated Family lawyers at 1 877 602 9900 to book an initial consultation.
Romney Burkett, Legal Assistant
