The spousal support economic self sufficiency lawyers at MacLean Family Law have noticed an increased and welcome focus by the BC courts on the importance of spousal support claimants striving for economic self sufficiency. In the early 1980’s the “clean break” break principle was in vogue but since then a more generous support entitlement analysis was followed. Sadly, in some cases spouse’s who received support may not have had the incentive to pursue retraining or a career as robustly as they should have and as a result may have not fully benefited or succeeded financially. If you have an issue with your spouse not attempting to achieve spousal support economic self sufficiency contact us across BC now.
Now that the Canadian economy has taken a big downturn spouse’s who placed their “economic support eggs” all in one basket may be hit hard if their paying ex spouse has lost their job. Spousal support economic self sufficiency is ever more important now when no one’s job is safe and disruptive job market forces are at work. Spousal support economic self sufficiency is all the more important when separated parties are both trying to by a new house and move on.
I have always said a strong Canada and family system requires paying ex -spouse’s to keep working to their capacity while equally requiring recipient spouse’s to get back into the work force for their own sake as well as for the sake of their children who need two working parents to maintain the same lifestyle after separation. Spousal support economic self sufficiency is not an absolute duty but is at a minimum a goal that must be vigorously not have heartedly pursued. Lorne MacLean, QC argued these principles in the leading spousal support economic self sufficiency case of Leskun v. Leskun.
In the recent case of Pastor v. Klusiewich the court dealt with this issue and denied spousal support to a spouse looking at the three bases that support may be awraded on as well as the principle of encouraging self sufficincy. Here are the key extracts bolded for the best parts:
Spousal Support
[36] Neither party has earned more than a modest income. As I have mentioned I am somewhat sceptical of the respondent’s reporting of his income but I have no sufficient basis on which to impute income to him. The claimant seeks spousal support. The evidence does not lead me to conclude that the claimant cannot earn an income to at least a level she had during the marriage. She has in recent times been employed as a fitness instructor which I understand provides less than the income she could have earned by seeking other employment. Her choice to earn a relatively small income should not be visited on the respondent. In Jendruck v. Jendruck, 2014 BCCA 320 at para. 16, Madam Justice Saunders for a unanimous Court wrote the following:
[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.
[37] Section 15.2(1)(4)(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) reads as follows:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
…
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
…
(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.
[38] There are three bases for an award of spousal support, namely compensatory, non-compensatory and contractual. See: Chutter v. Chutter, 2008 BCCA 507. The compensatory basis has application when a spouse has made sacrifices in assuming child care and household duties during the course of the marriage resulting in a lower earning potential. The compensation basis has no application here and, furthermore, the marriage was relatively brief (7 years). The non-compensatory basis is to alleviate hardship as a result of the breakdown of the marriage. The “means and needs” of the parties are to be taken into account. In this present matter I can detect no difference in the means and needs of the parties. Furthermore, the claimant used and exhausted savings which were a family asset. It would be unfair now to impose a spousal support obligation on the respondent. There is no contract between the parties concerning spousal support. The application for spousal support must be dismissed. In all the circumstances I decline to make a compensation order pursuant to s. 97(2)(c) of the Family Law Act in favour of the respondent.
Talk to one of our highly experinced lawyers including the highly skilled Lorne MacLean, QC if you have a spousal support economic self sufficiency dispute. Call us across BC toll free at 1-877-602-9900.
