Lorne MacLean, QC, the founder of our firm, has continually championed a BC spousal support and BC child support approach that encourages both spouses to work to their fullest capacity to earn income. MacLean believes Canada as a nation will be weaker if support paying spouses quit their jobs and/or support receiving spouses refuse to look for work. What happens when Vancouver Spousal Support Self Sufficiency disputes come before the courts?
Vancouver Spousal Support Self Sufficiency Issues
- Given the uncertainty of the modern economy is it wise for a receiving spouse to refuse to retrain?
- When parties separate after a long marriage, is the spouse who was the homemaker entitled to stay at home forever and receive spousal support or should they get a job?
- Is it realistic for a spouse who has been out of work for several years to immediately get a well paying job?
- Can a court attribute or impute an income to lazy or recalcitrant spouses?
Vancouver Spousal Support Self Sufficiency
All of these issues were considered in the Supreme Court of Canada case of Leskun v Leskun where Lorne MacLean, QC acted for the paying spouse. Maclean’s Leskun case was cited in the recent BC Court of Appeal decision of Jendruck v. Jendruck where our BC Court of Appeal overturned a trial court decision that failed to impute or attribute income to a wife who was running a daycare that made almost no profit.
Our BC Appeal court focused on the duty of a spouse to attempt to achieve self sufficiency and to work to their capacity and concluded that the Divorce Act requires a party to take reasonable steps to contribute to his or her own financial support. Our BC Appeal court held the judge erred in declining to impute income to the wife.
[11] As has been observed many times, the application of these provisions engages the discretion of the judge, and requires a balancing of the objectives and the factors in the circumstances before the court. In Rogers v. Rogers, 1999 BCCA 238, 67 B.C.L.R. (3d) 315, Justice Esson thoughtfully discussed two leading cases from the Supreme Court of Canada: Moge v. Moge, [1992] 3 S.C.R. 813, 43 R.F.L. (3d) 345; and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 44 R.F.L. (4th) 1. Different models are engaged for the determination of the amount and duration of a spousal support order, depending on the circumstances of the parties and the circumstances of the marriage. At para. 36 of Bracklow,referred to by Justice Esson, Justice McLachlin (now C.J.C.) said:
In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse … the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party”: Ross v. Ross (1995), 168 N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.
[12] Earlier, at para. 32, Justice McLachlin had stated:
… It is critical to recognize and encourage the self-sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships. On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support.
[15] In McEachern v. McEachern, 2006 BCCA 508, 62 B.C.L.R. (4th) 95, Justice Prowse observed as to the responsibility to seek remunerative employment:
[43] The primary objectives of a support order in this case, therefore, must be to relieve, to the extent possible, the economic hardship suffered by Ms. McEachern as a result of the marriage breakdown (s. 15.2(6)(c)), and “in so far as practicable” promote her economic self-sufficiency within a reasonable period of time (s. 15.2(6)(d)). In that regard, the following passage from this Court’s decision in Tedham v. Tedham, [2005] B.C.J. No. 2186, 2005 BCCA 502 (at para. 33) is apt:
… s. 15.2(6)(d) of the Act does not require self-sufficiency, but simply seeks to promote self-sufficiency “in so far as practicable”. In determining what is practicable, regard must be had to all of the circumstances, including the age and gender of the spouse, her/his skills and education, or lack thereof, the opportunities for retraining, and the realistic prospect of the spouse being able to find not just a job, but one which enables her/him to become self-sufficient, which may be quite a different matter.
[16] Consistently, the courts have affirmed and applied the objective in the Divorce Act of striving for economic self-sufficiency, while recognizing that attainment of full economic self-sufficiency may not be practicable. To the degree effort could be made by a party to contribute to his or her own support in the circumstances, and effort has not been made, the courts have said the consequences of that party’s choice falls on them. The courts do not, and cannot, say a person must take up any particular employment. It is a free society in which people may choose how to spend their hours. However, where the effort to contribute to one’s own support is deemed insufficient in all the circumstances, the court will place the consequence of the inadequate effort on the person whose choice it is, and may do so by the vehicle of imputing income for under-employment.
In the end result the court attributed a very modest income of $12,000 per year which lead to a nominal reduction in spousal support. The lesson learned is that each spouse should be encouraged to earn income and advance their careers in a relationship. If a spouse is out of the work force and sacrifices their career support could be substantial and long term.
Vancouver Spousal Support Self Sufficiency arguments are contentious issues. Our top rated BC spousal support dispute lawyers can protect you but only if you call us at 1-877-602-9900.
