Our Surrey spousal support variation lawyers frequently assist our clients in making Surrey spousal support variation and Surrey spousal support termination cases. Many people erroneously think the instant an ex-spouse remarries or enters into a new common law relationship spousal support paid by their former spouse ends. This is simply not correct although it might be wishful thinking by the paying spouse. So why wouldn’t spousal support stop? Should the court look at how much the new spouse earns to see how the new relationship impacts the financial needs of the support recipient? Should the court look at the new relationship more than once on a Surrey spousal support variation case?
It is fair to say a new relationship has some impact on spousal support variations both on the issue of the amount of Surrey spousal support and how long Surrey spousal support and maintenance should be paid. The reason a new relationship doesn’t automatically end support is based on the reason spousal support was paid in the first place. Support is paid to relieve economic hardship and disadvantages arising from the spousal relationship and also based on need. Like the story of Robin Hood the rule of taking from the rich to support the poor applies. Whenever one spouse earns far more than the other when a relationship ends Surrey spousal support is in play. MacLean Law can’t protect your heart but we can protect your rights.
How Does Surrey Spousal Support variation Work?
In Zacharias v. Zacharias, our BC Court of Appeal restated the rules for when spousal support will be reduced or terminated entirely. The case dismissed the appeal of a husband from his Surrey spousal support variation application. The court looked at the test for spousal support variations and the standard of living to be maintained by each separated spouse after a long marriage. Simply put the longer the marriage the larger the award of Surrey spousal support and the greater the certainty the duration will be ongoing and not time limited.
The BC Court of Appeal official summary states:
Spousal support entitlement may arise from compensatory or non-compensatory factors, but the award itself is indivisible, and is available, in its entirety, to satisfy both compensatory and non-compensatory goals. The order under appeal, however, should stand. In this case, the appropriate measure of support was a level that would afford the wife the ability to maintain a standard of living similar to the one enjoyed during the marriage. The husband did not establish that support in the amount of $3,000/month was excessive for that purpose.
Can Someone Explain How Spousal Support Works Please?
[29] A party applying to vary a support order must demonstrate that there has been a material change in the circumstances of an unforeseen nature since the making of the original order (see Willick v. Willick, [1994] 3 S.C.R. 670; G. (L.) v. B. (G.), [1995] 3 S.C.R. 370). On this appeal, both parties accept that Ms. Hannigan’s remarriage, with the financial implications that it has had, represents a material change in her circumstances satisfying the requirements of s. 17(4.1) of the Divorce Act. Ms. Hannigan’s remarriage has significantly affected her financial situation, and was not in contemplation when the original support order was made.
[30] An application to vary a support order is not a fresh examination of all aspects of the case. A court hearing such an application must accept the original support order as having been an appropriate one. The focus of a court on a variation application is on the change in circumstances, and on how that change should affect support obligations (see L.M.P. v. L.S., 2011 SCC 64 at paras. 22–27 and 47).[46] Despite the judge’s findings that Ms. Hannigan’s earning capacity has not been detrimentally affected by the marriage, and his possible view that her contributions to Dr. Zacharias’s earning capacity were of minimal importance, he nonetheless found a continued right to compensatory support. As I read his reasons, he based his conclusion on the premise that “[t]he longer the marriage, the more it weighs in favor of an award of compensatory support.”
[47] In my view, the premise, as stated by the judge, must be qualified. The significance of a long marriage is as stated in Moge at 870:
As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.
[48] Thus, the fact of a long marriage does not, in and of itself, support an award of compensatory support. Rather, it supports such an award if the court concludes that such an award is necessary to achieve a parity of living standards, and if the court accepts that “presumptive claim” as the appropriate goal.
[49] The judge’s variation of the award seems to have been premised on the length of the marriage alone, and on an unexplained view that one-half of the original spousal support award was compensatory. The judgment, then, was not well-founded in law.
[50] Despite my concerns with aspects of the judge’s analysis, I agree with his conclusion that the basic foundation for entitlement to compensatory support exists in this case. Dr. Zacharias’s capacity to earn income was enhanced by sacrifices made by Ms. Hannigan made during the course of the marriage. Thus, she has a prima facie entitlement to compensatory support.
[51] Where such a right exists, courts have not demanded a meticulous accounting of the detriment suffered by one spouse or the benefit received by the other. Such an analysis would be complicated, and expensive to produce, as it would require the engagement of expert witnesses. In Moge, at 871, the Supreme Court of Canada recognized that, for practical reasons, less rigorous proof must be accepted:
[S]pousal support orders remain essentially a function of the evidence led in each particular case. In some cases, such evidence might come in the form of highly specific expert evidence which enables parties to present an accurate picture of the economic consequences of marriage breakdown in their particular circumstances. (See Ormerod v. Ormerod (1990), 27 R.F.L. (3d) 225 (Ont. U.F. Ct.), and Elliot v. Elliot (1992), 42 R.F.L. (3d) 7 (Ont. U.F. Ct.).) Although of great assistance in assessing the economic consequences of marriage breakdown in a particular marriage, such evidence will not be required nor will it be possible in most cases. For most divorcing couples, both the cost of obtaining such evidence and the amount of assets involved are practical considerations which would prohibit or at least discourage its use. Therefore, to require expert evidence as a sine qua non to the recovery of compensation would not be practical for many parties, not to mention the use of court time which might be involved.
[52] The practice that has developed is referred to by Professors Rogerson and Thompson in their notes entitled The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version (2010). They say, under the heading “Entitlement as a threshold issue” and subheading “Compensatory claims”:
While compensatory claims in theory require an individualized assessment, in practice, in long marriages with children, the marital standard of living is used as a proxy measure of compensatory gains and losses.
[53] The practice was also mentioned, with apparent approval, at para. 34 of this Court’s judgment in Morigeau v. Moorey, 2015 BCCA 160.
[54] Where entitlement to compensatory support is established, and the marriage has been a long one, the marital standard of living is often a reasonable measure of appropriate compensation. It represents the standard that the parties themselves established as a result of each individual’s sacrifices and advantages during the union, and will often represent the standard that they could have expected to maintain if the marriage had not broken down.
[55] In saying this, I do not imply that this measure will always be determinative of the amount of spousal support. All of the factors set out in s. 17(7) must be considered by a judge in fixing appropriate spousal support. As was said in Moge at 866-67:
The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in the Act in order to achieve equitable sharing of the economic consequences of marriage or marriage breakdown. This implies a broad approach with a view to recognizing and incorporating any significant features of the marriage or its termination which adversely affect the economic prospects of the disadvantaged spouse.
[56] It should be remembered, as well, the payee spouse, no less than the payor, is entitled, if possible, to maintain a standard of living similar to that enjoyed during a long marriage. Where the resources of the parties are not sufficient to allow both to enjoy that standard, it will usually be reasonable to equalize the deficit and allocate resources so as to allow each party to enjoy a similar standard of living.
[57] That said, there is no specific formula that can be applied to these cases, and specific factors unique to individual cases may justify other measures of support.
[58] In the case before us, there are sufficient resources available to allow Ms. Hannigan to enjoy a standard of living similar to the one that the couple enjoyed during marriage, while not preventing Dr. Zacharias from also doing so. In the absence of better evidence on which to evaluate compensatory support, the court will presume that compensatory goals are met when the recipient spouse’s standard of living is equivalent to the standard enjoyed during the marriage.
When you are paying or receiving support, you must hire a top family lawyer such as Lorne MacLean, QC of MacLean Law to get the amount and duration of Surrey spousal support correct.In high income cases, Surrey spousal support variation disputes can involve hundreds of thousands of dollars. It pays to get it right both on the first application for support and on any Surrey spousal support variation case. Call us in Surrey ay 604-576-5400 or any of our three other offices located in Vancouver, Kelowna, Fort St John and Dawson Creek BC by calling toll free at 1-877-602-9900.
