BC Interim Spousal Support Pending Trial Is a Big Deal!
Separating BC family law spouses will wait several months until a trial judge determines issues of permanent child custody, child support, spousal support and family property division. Delay or procrastination often makes matters worse so it is critical you hire an experienced family lawyer. MacLean Law helps people resolve matters so people can move forward positively with their lives.
Homemakers, lower income earning spouses and children must be financially supported during the interim period from separation until the parties settle or the trial occurs and decides the disputed financial and other issues. Courts can act quickly to make awards of interim spousal support and interim child support.
But how does the court decide the proper amount of interim spousal support to be fair to the paying and receiving spouse?
The recent BC interim spousal support case of Hughes v. Erickson provides a great summary explaining how Judges and Masters in BC decide the proper amount of spousal support.
BC Interim Spousal Support Looks At Needs and Means and SSAG
(36) Ms. Hughes seeks interim spousal support under the “with child support” formula in accordance with the Spousal Support Advisory Guidelines.
(37) There is no doubt that the parties were spouses within the meaning of s. 3 of the FLA. The following provisions of the FLA set out the basis for determining entitlement to, the amount of, and the duration of spousal support:
- If, after considering the objectives set out in section 161 [objectives of spousal support], a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with section 162 [determining spousal support].
- In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;
(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
- The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:
(a) the length of time the spouses lived together;
(b) the functions performed by each spouse during the period they lived together;
(c) an agreement between the spouses, or an order, relating to the support of either spouse.
(38) In Robles v. Kuhn, 2009 BCSC 1163 at para. 12, Master Keighley set out a useful set of principles governing interim support orders:
- On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance: Gibb v. Gibb, [2005] B.C.J. No. 2730 (S.C.);
- An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it: Grossi v. Grossi, [1993] B.C.J. No. 878 (S.C.);
- On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best: Randhawa v. Randhawa, [1999] B.C.J. No. 3299; Newson v. Newson, [1998] B.C.J. No. 2906, 65 B.C.L.R. (3d) 22 (C.A.);
- The courts should not unduly emphasise any one of the statutory considerations above others;
- On interim applications the need to achieve economic self-sufficiency is often of less significance;
- Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise: Ladd v. Ladd, [2006] B.C.J. No. 1930, 2006 BCSC 1280 (S.C.);…
What Happens When There is Doubt That BC Interim Spousal Support Should Be Paid Before Trial?
([39) The factors to be considered in respect of interim spousal support were described by Mr. Justice Barrow in B. (L.G.) v. M. (M.A.C), 2005 BCSC 1786. Two are particularly appropriate in the circumstances in this case:
(14) … First, given the limitations of both time and evidence which necessarily constrain interim applications, caution should be exercised before descending into the merits of an issue. The greater the need to resolve contested issues of fact, especially those going to a threshold issue as in this case, the more likely it is that the decision ought not to be made on an interim basis.
(15) Second, the need for caution is all the greater when, as a result of an interim order, money will be paid and there is an issue as to whether it can be recovered following a trial if it is determined that the recipient is not entitled to the funds.
In the end result the husband who was found to earn slightly more than $200,000 was ordered to pay significant interim spousal support on the “with child” formula.
(46) Therefore, in respect of Ms. Hughes’ application for interim spousal support, I order the following: Mr. Erickson will pay all expenses on the Balsam Property, including mortgage payments, property taxes, insurance, repair and maintenance, and utilities, including cable, internet and telephone (excepting long distance and other service charges incurred by Ms. Hughes); and, in addition, Mr. Erickson will pay to Ms. Hughes the sum of $750, payable on the first day of every month.
Interim spousal support awards have a huge impact on settlement negotiations and even trial awards. You cannot afford to make a mistake that results in too high or too low of an interim spousal support award. Call us across BC toll free at 1-877-602-9900 and meet with us in Kelowna, Surrey, Fort St John and Vancouver.
