Entitlement To Vancouver BC Spousal Support lawyers deal with whether spousal support should be paid, how much spousal support should be paid and for how long BC spousal support should be paid. MacLean Family Law’s Entitlement To Vancouver BC Spousal Support team operates across BC with offices in Vancouver, Surrey, Richmond, Kelowna and Fort St John BC. We also help Calgary family law clients from our downtown Calgary office.
Entitlement To Vancouver BC Spousal Support-Massive Decision Refocuses Rules On Entitlement To BC Spousal Support
Remember to hire a top family lawyer who understands the fact entitlement to spousal support is a critical first step as the SSAG states:
However, the case law does show that there may be a finding of “no entitlement” despite income disparity. Under the current law it is possible to argue that an income disparity reflects neither economic disadvantage flowing from the marriage nor economic need and hence that there is no entitlement to support. Lawyers using the Advisory Guidelines need to remain aware of these possibilities.
A recent judgment in the British Columbia Court of Appeal shows a new and modern view by the Court of scrutinizing rigorously one’s entitlement to BC spousal support instead of the past, near routine application of the Spousal Support Advisory Guidelines (SSAG) by judges. Our top rated Entitlement To Vancouver BC Spousal Support know that the SSAG guidelines do say that entitlement is a threshold issue to be decided before application of the guidelines. Yet, often in earlier cases, this threshold was deemed met simply based upon the fact that the SSAG spousal support calculation generated an amount payable and a duration for payment in a disputed spousal support case. Has the pendulum swung back on spousal support more towards the concept of self-sufficiency? If you have an entitlement to Vancouver BC spousal support or self sufficiency support dispute it makes sense to hire MacLean Law right away.
Entitlement To Vancouver BC Spousal Support – Call Us 1-877-602-9900
Before granting an order for spousal support under the Divorce Act, the Court must consider the objectives of such an order as stipulated in s.15.2(6):
15.2(6) An order made made under subsection or an interim order under subsection (2) that provides support of a spouse should:
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
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
c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
New Focus On Entitlement To Vancouver BC Spousal Support
On October 9, 2014, judgment was pronounced in Lee v. Lee, 2014 BCCA 383, from an appeal by a husband who had been denied spousal support from his wife after a 20 year marriage where the wife earned a considerably higher income than the husband. Lee v. Lee is significant case law for husbands or wives who earn considerably higher incomes than their spouses.
It also points out that entitlement issues regarding spousal support must be decided before any slavish application of the SSAG by the court in cases where the paying spouse cannot afford to pay the spousal support outlined in the SSAG, particularly where a lifestyle in the marriage was sustained through debt and/or refinancing.
Gender Income Gap and Entitlement To BC Spousal Support
As of 2013, Statistics Canada and the Conference Board of Canada state that men are still continued to be paid higher than women who work in the same occupation by approximately 19%. This gender pay gap combined with the fact that women commonly sacrifice their career or vocational goals to run the family home, contributes to the ideology that wives are financially dependent upon their husbands; thus, allowing them -some people argue- to ride the so-called “alimony pony” automatically.
Is The Entitlement To Vancouver BC Spousal Support Pendulum Swinging Back to Self Sufficiency?
The BCCA in Lee v. Lee questions this ideology and whether the government should be responsible for a disadvantaged spouse or should it automatically be the spouse with the higher income, statistically more often the husband, that pays spousal support without looking at entitlement issues in a principled way:
52…marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support. The real question in such cases is whether the state should automatically bear the costs of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting. Some suggest it would be better if the state automatically picked up the costs of such cases…However, as will be seen, Parliament and the legislatures have decreed otherwise by requiring courts to consider not only compensatory factors, but the “needs” and “means” of the parties. It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court.
61…Equalization of incomes, or even of lifestyles, is not a basis alone for non- compensatory spousal support. Still less is equalization of incomes each year….Loss of access to the fruits of the respondent’s future labour is not a recognized underpinning to entitlement to spousal support, absent other considerations (Griffiths v. Griffiths, 2011 ABCA 359),
The main factors to be considered in Lee v. Lee are the following:
- Husband and wife were married for 20 years with no children. Husband is 56 and wife is 49.
- Husband worked full-time as a car man with CN and worked part-time as a doorman at a bar. His annual income was $48,000.
- Wife was attending university when the couple first met and worked part-time as a bartender. She earned her bachelor’s and master’s degrees and a teaching certificate. By 2005, she was a high school principle with an annual income of approximately $120,000.
- In 2001, the husband suffered a motor vehicle accident and was unable to return to work at CN He began receiving disability and other benefits. He began working part-time as a personal trainer in 2004 and claimed to earn under $10,000 per annum; however, he never filed any tax returns to prove such claim.
- The husband and wife lived an extravagant lifestyle – one which was far beyond their means. Both parties carried large amounts of debt; although, it was determined by the Court that the husband spent the most amount of money and it went to personal items rather than for a family purpose.
- The wife made the mortgage payments and paid for other necessities for the family from her income.
- Neither the husband nor the wife had suffered any economic disadvantage from the other during the course of the marriage.
- Since separation, the husband has resided with his new partner, who earns approximately between $75,000 and $90,000 base salary, plus overtime.
- As the husband did not file any tax returns and was paid by his clients in cash, he was unable to prove his actual income. The Court also determined on a balance of probabilities that the husband had chosen to be voluntarily unemployed and attributed a potential annual income to the husband in the range of $50,000 to $60,000 or more.
- The wife voluntarily paid the husband a lump sum amount of $17,500 to assist him in adjusting to his new circumstances after the marriage breakdown.
Clean Break Versus Support being Used As a Tool For Income Redristribution
The Honourable Madam Justice Newbury explained how spousal support in the husband’s case would be viewed with relation to the Spousal Support Advisory Guidelines:
65. If Mr. Lee had not formed this new relationship, the case law in British Columbia would have permitted an award of spousal support to him, given the length of the parties’ marriage (which presumably creates interdependence) and the expansion of the meaning of “need” in the family law context. But whether it would have been a “material error” in law or a wrong exercise of discretion to refuse support in such circumstances is another matter. To rule as a matter of law that Mr. Lee should be compensated indefinitely for the “loss” of the ability to share in Ms. Lee’s income and lifestyle would, taken into its logical conclusion, mean that support must be ordered on one model or the other in virtually every case that comes before the court. The concept of need (in the true sense) of the applicant spouse would be supplanted by the sole criterion of the respondent spouse’s ability to pay. Marriage would, automatically entitle a spouse to the standard of living enjoyed during the marriage, or as much as the payor could afford. I respectfully agree with the Professor Rogerson’s suggestion, and with the Court in Griffiths, supra, that this cannot be correct. A ‘clean break’ is clearly possible in this case, and again as stated in Moge, the mere fact of marriage or its breakdown does not activate a “general tool of redistribution.”
Men Should Not Be Discriminated Against On Vancouver and BC Spousal Support If They Have True Need
66. At the same time, the case law of this province referred to above does indicate that a party who experiences a marked decline in standard of living due to divorce should receive some financial assistance (either in form of reapportionment of assets or maintenance) in adjusting to his or her new situation – hence the concept of a “transitional award”, which is recognized by the SSAG. Such awards have been made in favour of women, but rarely in favour of men, perhaps reflecting that, as Rogerson suggests, “Non-compensatory support is significantly structured by social norms of what is fair and just. The economic dependency of husbands on wives is not reinforced and naturalized by strong cultural norms, as is the dependency of wives on husbands…” (At 234-5.) It seems to me that, setting aside for the moment the support already paid by Ms. Lee from August 1, 2012 to June 1, 2013, Mr. Lee could have expected some transitional award, if only on the “principle” that what is sauce for the goose is sauce for the gander.
Based on the fact that the husband had already received some voluntary spousal support from the wife combined with the fact that he could not prove his actual income and was benefiting from contributing income in his new relationship, the Court determined that he should not receive ongoing spousal support. Furthermore, the standard of living enjoyed by the husband and wife during the marriage was considered “illusory” as it was sustained by a continuing cycle of debt and refinancing. This case opens the door to far more focused arguments on entitlement to BC spousal support.
