Lorne MacLean, QC is MacLean Law’s senior spousal support appeal lawyer. He routinely handles complex and high net worth spousal support cases and BC spousal support appeals at the highest level. As a seasoned and accomplished spousal support appeal lawyer, he is one of a very few family lawyers in Canada to have multiple appearances in the Supreme Court of Canada. When you need a to BC spousal support appeal lawyer contact Lorne MacLean, QC.
As a seasoned and highly accomplished spousal support appeal lawyer, Mr MacLean has had great success in helping to set the law of spousal support including successful appeals on spousal support that resulted in a spousal support award being tripled from the trial judgment in the BC Court of Appeal decision of Lightle v Kotar.
MacLean, acting as high stakes spousal support appeal lawyer also obtained a substantial order for spousal support and special costs against a husband for his client Ms. Young in Canada’s seminal child custody case of Young v. Young in the Supreme Court of Canada and he urged the Supreme Court of Canada in Leskun v. Leskun to encourage spouses to each make their best efforts to become and maintain there self sufficiency so each spouse could improve their child’s and their own standards of living.
As MacLean Law’s senior spousal support appeal lawyer Mr. MacLean has seen the earlier focus of self sufficiency and clean break which was popular in the 1980’s give way to a more generous and more prolonged spousal support payment scheme. The court went so far as to say the difference in incomes between parties justifies and award of support. As a top spousal support appeal lawyer Mr MacLean is concerned the support calculators we use to calculate the amount and duration of support are all to often used as a default position or a “self fulfilling prophecy” that spits out an amount and duration without the rigorous analysis that first must be done to see if someone is entitled to spousal support. Given the uncertain work environment in BC now no one can afford to refuse to work to their full capacity to be self sufficient. Putting “all your eggs in one basket” and expecting one spouse to support the other for life is no longer realistic in today’s society. Support is not intended to provide “cradle to grave security”.
Are Big Changes Coming For Spousal Support in BC?
A recent decision of our BC Court of Appeal suggests the courts are now focusing more rigorously on support entitlement and not simply paying this concept lip service before using the Divorcemate spousal support calculators. In the case of Lee v. Lee the spousal support appeal lawyer for the husband argued the husband was entitled to spousal support because his income was less than his wife’s. He was looking to have his income after support be close to equal of that of his wife. The BC Court of Appeal rendered a judgment that raised hope for Lorne MacLean, QC as a spousal support appeal lawyer because this case holds support cannot be awarded merely based on an income disparity between the spouses.
The BC Court of Appeal made a key legal decision that will guide support cases moving forward and we extract the key paragraphs which every family law litigant and Spousal Support Appeal Lawyer should be aware of when they have a BC spousal support case:
Before any question arises as to the amount or duration of support, the person claiming support must demonstrate a basis for entitlement. The Spousal Support Advisory Guidelines are irrelevant in determining that threshold question of entitlement: L.D.F. v. S.J.F., 2007 BCSC 1800; Hokhold v. Gerbrandt, 2012 BCSC 1683; Yemchuk v Yemchuk, 2005 BCCA 406. [At paras. 74-5.]
[24] The Court noted the factors to be considered in granting an order for spousal support under s. 15.2(4) of the Divorce Act, and the objectives of such an order as set out in s. 15.2(6), which I reproduce below:
15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the 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.
[25] The judge noted that the Supreme Court of Canada has recognized three conceptual bases, or “models”, for entitlement to spousal support, namely compensatory, needs-based, and contractual. (Since the parties did not enter into any agreement in this case, I need not discuss the contractual model.) He cited a long passage from Moge v. Moge which ended with the following observations:
The equitable sharing of the economic consequences of marriage or marriage breakdown, however, is not a general tool of redistribution which is activated by the mere fact of marriage. Nor ought it to be. It is now uncontentious in our law and accepted by both the majority and the minority in Messier v. Delage, supra, at pp. 416-17, that marriage per se does not automatically entitle a spouse to support. Presumably, there will be the occasional marriage where both spouses maximize their earning potential by working outside the home, pursuing economic and educational opportunities in a similar manner, dividing up the domestic labour identically, and either making no economic sacrifices for the other or, more likely, making them equally. In such a utopian scenario there might be no apparent call for compensation. The spouses are able to make a clean break and continue on with their respective lives. Such cases would appear to be rare. In most marriages in which both partners make economic sacrifices and share domestic responsibilities, or where one spouse has suffered economic losses in order to enable the other spouse to further a career, their roles should be considered in the spousal support order. [At 864-5; emphasis added.]
61] The question of equalization of incomes was addressed more fully by the Alberta Court of Appeal in Griffiths v. Griffiths 2011 ABCA 359. The facts of that case had many similarities to the facts here: after a 24-year marriage without children, the husband sought spousal support in order to maintain the “comfortable lifestyle and spending habits which he had before the couple separated.” (Para. 2.) Like the trial court, the Court of Appeal rejected this claim. In the analysis of the Court:
We cannot find any principled way to support his claim. Nor could the chambers judge, to whom we owe appellate deference. 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. See Luke v. Luke [1997] 10 W.W.R. 68, 118 Man. R. (2d) 68, paras. 19-20 (C.A.). 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.
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 to 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, contrary to what was said in Moge, 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 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.” As far as I am aware, this principle has not been overruled.
[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 the form of re-apportionment 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 regularly 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. As it is, Ms. Lee did pay a total of $17,500 to Mr. Lee, presumably assisting him in adjusting to his new circumstances.
This case represents a swinging back of the pendulum to perhaps a more useful focus on spouses focusing on their own careers and income earning abilities. Is self sufficiency back on the table now in BC? It remains to be seen. If you have a tough spousal support case or need a top Spousal Support Appeal Lawyer call us now at 604-602-9000.
