Calgary Interim Spousal Support Lawyer 403-444-5503
An experienced Calgary Interim Spousal Support Lawyer acts to protect clients rights and ensure proper interim spousal support is paid until a judge can deal fully with the competing arguments and positions of the parties. Our Calgary Interim Spousal Support Lawyer team knows that a full trial is where the judge can properly:
- assess the credibility of the parties after seeing each party and their witnesses testify and be cross examined,
- analyze each party’s financial records and historical spending,
- have the ability to assess the valuations of assets and even expert business valuation reports on each parties ability to earn incomes from employment, investments. companies, professional practices and ventures.
- come to a correct amount and duration for Calgary spousal support.
The best Calgary Interim Spousal Support Lawyer will also understand that parties need the issue of interim Calgary spousal support dealt with sooner rather than later to avoid unfairness even if this means an initial interim spousal support award isn’t perfect justice. Delay in seeing our skilled Calgary Interim Spousal Support Lawyer team often leads to unsatisfactory results.
Think of the special chambers hearing judge as something like a legal paramedic who looks at the parties means and needs and puts an order in place that allows the parties to survive financially until trial.
Top Calgary Interim Spousal Support Lawyer Advice
A senior Calgary Interim Spousal Support Lawyer knows that the longer the marriage and the greater the income disparity between both spouses, the greater the likelihood Calgary interim spousal support will be paid and in greater amounts.
Self sufficiency is something our Calgary Interim Spousal Support Lawyer group knows is scrutinized less closely than at a trial. Often expecting a spouse to immediately get a job is unrealsitic in the few months before trial.
Calgary Interim Spousal Support Lawyers direct our clients and those involved in an interim spousal support case to this years Alberta Court of Appeal decision in Anand v Anand, 2016 ABCA 23 (CanLII):
(b) Law
[53] Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, 99 DLR (4th) 456 sets out a framework for analyzing both entitlement to and quantum of spousal support. The general categories are commonly referred to as compensatory, non-compensatory and contractual.
[54] Shields v Shields, 2008 ABCA 213 (CanLII) at paras 18-21, 432 AR 266 provides a succinct review of the applicable analytical framework:
[18] The statutory provisions found in the Divorce Act are the starting point in determining spousal support. It is useful to review them:
15.2 (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.
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) An order made under subsection (1) or an interim order made 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.
[19] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813 at para 77, the Supreme Court of Canada recognized the importance of the presiding judge’s discretion and the difficulty of setting down principles that would guide every case:
The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. At the end of the day however, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act.
[20] In Moge, the court made three general observations: the distinction between “traditional” and “modern” marriages is not very useful; the support provisions of the Divorce Act are intended to deal with the economic consequences for both parties of the marriage on its breakdown; and what the Divorce Act requires is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses.
[21] The crucial issue is to find the right balance and then exercise discretion in making an award. As McLachlin J. (as she then was) said in Moge at para. 107:
. . . the judge’s task under . . . the statute is to make an order which provides compensation for marital contributions and sacrifices, which takes into account financial consequences of looking after children of the marriage, which relieves against need induced by the separation, and, to the extent it may be “practicable,” promotes the economic self-sufficiency of each spouse. Neither a “compensation model” nor a “self-sufficiency model” captures the full content of the section, though both may be relevant to the judge’s decision. The judge must base her decision on a number of factors: compensation, child care, post-separation need, and the goal, insofar as practicable, of promoting economic self-sufficiency.
[55] As noted in Moge at 870, the longer a marriage endures the greater the presumptive claim to equal standards of living upon its dissolution.
[56] Interim spousal support orders are often treated differently than spousal support awarded after trial, in that evidence concerning family assets and economic consequences of the marriage breakdown may not be fully developed, so greater significance is placed on the parties’ means and needs, while the other factors in s 15.2(4) and the objectives in s 15.2(6) are to be taken into account as far as is practicable: Bennett v Bennett, 2005 ABQB 984 (CanLII) at para 34, 57 Alta LR (4th) 380 [Bennett]; Loesch v Walji, 2008 BCCA 214 (CanLII) at paras 17-20, 52 RFL (6th) 33.
[57] Although other s 15.2(4) factors and s 15.2(6) objectives must be taken into account, the needs of the dependent spouse and the ability of the payor spouse to pay take on greater significance in interim applications. The ultimate question for the court on an interim application is to determine what is reasonable on a temporary basis pending trial: BDC v MCM, 2014 ONSC 6064 (CanLII) at para 14, [2014] OJ No 4940 (QL). This Court has recognized that interim orders are often made on an incomplete record and chambers judges do the best they can to set an interim balance between the parties until the matter can go to trial: MacMinn v MacMinn (1995), 1995 CanLII 6247 (AB CA), 174 AR 261 at para 10, 17 RFL (4th) 88 (CA); Peterson v Ardiel, 2007 ABCA 218 (CanLII) at para 11, 39 RFL (6th) 41.
[58] The purpose of the interim order under appeal was to put an imperfect solution in place pending a full trial of all matters in issue between the parties, including matrimonial property, exemptions, legal custody, residential care of the infant children, and so forth.
[59] The appeal record discloses that the special chambers judge considered the circumstances of the parties including the “condition” of the parties, defined as the age, health, needs, obligations, dependents and station in life: Bennett at para 27. He also considered the “means” of the parties which includes “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits”: Strang v Strang, 1992 CanLII 55 (SCC), [1992] 2 SCR 112 at 119, 92 DLR (4th) 762, affirmed in Leskun v Leskun, 2006 SCC 25 (CanLII) at para 29, [2006] 1 SCR 920. The special chambers judge considered the income earning capacity of each party, their incomes from investments, and their net worth generally: Bennett at para 28.
[60] We do not agree that the special chambers judge considered matrimonial property in his “means” analysis; indeed, he expressly stated that “other issues, such as matrimonial property, have not been dealt with”: AR transcript at 310/41-311/1. Precisely for this reason, the interim spousal support order must be reviewed in the context of a trial determining all other extant issues.
[61] When considering “needs” the court must consider need relative to the station in life the parties have achieved before collapse of the marriage: Riad v Riad, 2002 ABCA 254 (CanLII) at para 33, 317 AR 201 [Riad]. Through this prism, where there is an ability to pay, the court must determine a reasonable standard of living: Bennett at paras 30-31.
[62] Having reviewed the record and the findings of the viva voce special chambers judge, we discern no error in principle or significant misapprehension of the evidence, nor is the award of interim spousal support clearly wrong. In particular, the factor mentioned by the viva voce special chambers judge relating to the need for the mother to have adequate means to promote better access to the children – she currently rents one room and cannot adequately accommodate the children – was not clearly wrong, given that parenting will be dealt with once a bilateral assessment is completed.
[63] We are not entitled to intervene simply because we may have made a different decision or balanced the factors differently, or set a different quantum of spousal support on an interim basis pending trial. Given the matrimonial home and the retained earnings in the professional corporation, we see no imminent danger that even if we were to accept the appellant’s argument that present spousal support is on the generous side (although only 3.2% of the appellant’s reported income), any future adjustment cannot be made in the context of matrimonial property division.
[64] Accordingly, the appeal is dismissed on all grounds.
[65] We think it appropriate to add a few additional comments, however, and will deal with costs, as spoken to at the conclusion of the appeal.
[66] Interim spousal support orders have inherent frailties; the evidentiary record is inevitably incomplete. Here, the viva voce special chambers judge had no ability to consider the interplay between spousal support and the division of matrimonial property, which future division may allow the respondent to generate income from assets.
[67] This Court has repeatedly urged that parties not waste finite time and money appealing interim orders – time and money better spent achieving an equitable settlement, or getting a final determination at trial of all matters in issue: Hartley v Del Pero, 2010 ABCA 182 (CanLII) at para 27, 487 AR 248; Zaboschuk v Zaboschuk, 2012 ABCA 172 (CanLII) at para 5, [2012] AJ No 575 (QL); Davies v Davies, 2015 ABCA 17 (CanLII) at para 6, [2015] AJ No 35 (QL); FJN at para 6.
