Calgary Spousal Support Variation Lawyers 403-444-5503
Calgary Spousal Support variation lawyers deal with changes in income of the paying and receiving spouse and the impact of child support reducing as each child becomes self sufficient. Calgary Spousal Support variation Lawyers who know to plan ahead for these changes can really assist a Calgary family law client. When there is uncertainty as to each parties ability to earn income or what the exact income will be in future years a spousal support review can be built into a court order or agreement. Calgary Spousal Support variation lawyers should also know that child support payments always depress the amount of spousal support payable. Some Calgary family lawyers may not put in an automatic increase , a review or a variation clause for spousal support adjustments as each child becomes self sufficient. A financial catastrophe can occur if lump sum spousal support is calculated on the future amounts payable when they are artificially lowered by child support obligations.
Calgary spousal support variation Lawyers at MacLean Family Law will meet with you to go over the goals of certainty, flexibility and the need to fairly allocate the economic advantages and disadvantages of a relationship and its breakdown.
Call our Calgary Spousal Support variation lawyers now at 403-444-5503
Calgary Spousal Support Variation Lawyers Appeal Decision Sets Out Law When Parties Agree To Review Support Annually
In Goodkey v Goodkey, 2015 ABCA 394 (CanLII) the Alberta Court of Appeal set aside a lower court ruling dismissing a review of spousal support and also said there was evidence of a clear material change that justified a variation of spousal support. Here is what they found:
The original support order
[15] The chambers judge’s failure to follow the terms of the original support order is sufficient to dispose of this appeal. The relevant terms of that order are clear: spousal and child support are to be reviewed and adjusted annually based on the guideline incomes of both parties as set forth in the Formula contained in the agreement. There is no basis in law or on the evidence to suggest that the inclusion of spousal support in that provision was an error. That the agreement is worded differently is not a reason to go behind the clear terms of the support order.
[16] The law encourages divorcing spouses to settle their differences, including with respect to issues of support. If they do so reasonably, they, like other contracting parties, expect that their agreements will be respected and enforced by the courts. Barring unforeseen circumstances that undermine the foundation of the bargain, courts should abide by the agreements of spouses: see Miglin v Miglin, 2003 SCC 24 (CanLII), which emphasizes that where people provide for an express support regime, the court should be extremely reluctant to intervene if the agreement is reasonable.
[17] In this case, the original support order anticipates the kind of application made by the appellant. It was technically unnecessary to bring an application to vary under s 17(4) of the Divorce Act; the support order itself provided for an annual review. The most obvious basis to trigger the review was the change in income of the parties.
[18] There is no suggestion before us that there is any basis to challenge the validity of the support order. It is evidenced by the parties’ consent, as authored by their respective legal counsel. The chambers judge did not seek submissions on the meaning of the term that provides for an annual review of spousal support; he seems simply to have decided the term should not be there. There was no basis for that conclusion, and the decision to dismiss the appellant’s application on that basis was in error.
[19] On that basis alone, the appeal must be allowed. However, we feel obliged to comment on the other conclusions reached by the chambers judge.
Calgary Spousal Support Variation Lawyers Know Increases In Income and Child Support Ceasing Justify Variation Of Calgary Spousal Support
After concluding the trail judge had improperly ignored the terms of the parties agreement that provided for an annual review they went further and dealt with the issue of whether there was a material change that would have also founded a variation of support and they held that two factors justified a variation of Calgary spousal support.
Material change of circumstance
[20] There were two changes in circumstance raised before the chambers judge: (1) the termination of child support and (2) the substantial increase in the respondent’s income. As noted above, because of the terms of the support order it was unnecessary for the appellant to establish a change in circumstances to trigger a review of support in this case. Nevertheless, the chambers judge’s reasons for rejecting both are worthy of comment.
[21] With respect to the termination of child support, the chambers judge held that the change “must have been …. in contemplation at the time of the divorce judgment and the settlement”. At the hearing of the application, there was a dispute between the parties as to whether the child who resided with the appellant remained a child of the marriage. Thus, while it could be said that it was reasonably anticipated by the parties that child support would terminate at some point, the specific timing of that termination remained unknown. It is also apparent from the terms of the agreement that spousal support and child support were intended to be linked. Moreover, the structure of the support order suggests the applicability of s 15.3(3) of the Divorce Act, which provides that “where, as a result of giving priority to child support a spousal support order … is less than it would otherwise have been, any subsequent reduction or termination of that child support constitutes a change of circumstances”. In all of these circumstances, it is clear that the termination of child support would have constituted a change of circumstance in this case.
Calgary Spousal Support Variation Lawyers Post Separation Income Increase
Another thorny issue our Calgary family lawyers deal with is how to treat salary increases of the paying spouse. The Court of Appeal discussed the various approaches to be taken:
[22] The chambers judge also held that the appellant was not entitled to any increase in the respondent’s income after the divorce. He held that the appellant could not share in the increase because she could not demonstrate that she had directly or indirectly contributed to that income.
[23] Apart from the wording of the support order, which expressly contemplates increases in spousal support where the payor’s income increases, we make the following observation. There are varying approaches to determining entitlement of a payee to post divorce increases in the income of the payor. There is a line of authority that holds there must be some causal connection between the marriage and the increased income: See Chalifoux v Chalifoux, 2008 ABCA 70 (CanLII). Courts have attempted to articulate what is a sufficient connection or contribution: see Sawchuk v Sawchuk, 2010 ABQB 5 (CanLII). This Court has stated that where a spouse has assumed primary care of children and household that can be sufficient to permit him or her to participate in post-divorce increases in income: Shukalkin v Shukalkina2012 ABCA 274 (CanLII).
[24] Other approaches consider the objectives of the original spousal support order. For example, was the order compensatory, and if so have its objectives been fulfilled? see Horner v Horner, 2004 CanLII 34381 (ON CA), 2004 CarswellOnt 4246, Marinangeli v Marinangeli, 2003 CanLII 27673 (ON CA), [2003] OJ No 2819, and Beninger v Beninger, 2009 BCCA 458 (CanLII).
[25] In this case, the chambers judge appeared to focus on finding a direct contribution to the increased income without reference to the parties’ agreement and without thoroughly considering the history of the corporation – for example, the fact that the parties had been joint shareholders before division of matrimonial property. Closer attention to what the parties themselves provided may well have yielded a different conclusion on the facts.
Final Result Respects What Parties Negotiated
Conclusion
[26] The appeal is allowed. The respondent is directed to pay spousal support arrears to October 1, 2013. The parties previously agreed that the respondent would pay spousal support on an average of the low to mid-range support, as calculated using the SSAG “with child support” formula. The appellant will receive spousal support at the SSAG “with child support” rate to June 16, 2015. After that date she will receive spousal support at the SSAG “without child support” rate. There is no reason to deviate from this formula.
