Vancouver Interim Spousal Support No Entitlement Lawyers deal with disputes involving contractual, compensatory and non-compensatory claims. Interim Spousal Support No Entitlement Lawyers argue that although interim support hearings do not involve as stringent an analysis of entitlement as a trial would, some evidence of entitlement must be presented to succeed on an interim claim for spousal support before the trial takes place. Contact our Vancouver Interim Spousal Support No Entitlement Lawyers in Surrey, Vancouver, Richmond, Kelowna and Fort St John, BC by clicking here. Contact our Calgary interim spousal support lawyers by clicking here.
Our top rated* Vancouver Interim Spousal Support No Entitlement Lawyers now conclude that more recent interim spousal support cases seem to approach the entitlement issue more strictly than past interim support cases did. The result is that interim spousal support claims are no longer a slam dunk.
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Lorne N. MacLean, QC founder of MacLean Law’s Vancouver Interim Spousal Support No Entitlement Lawyers writes today’s blog on a recent decision of Madam Justice Church of our Supreme Court. In this case, a husband’s claim for interim support was dismissed although he learned about $40,000 a year less than his wife and would earn far less once he retired which he said was going to happen imminently.
Here is what she decided in Reid v. Reid 2017 BCSC 251 distilled down to its key legal essence by Mr. MacLean:
Vancouver Interim Spousal Support No Entitlement Lawyers No Entitlement on Compensatory Grounds Says Court
[27] In this case, I agree with the submission of counsel for the claimant that there is no evidence that the respondent suffered any economic disadvantages, or lost any economic opportunities, as a result of the marriage or its subsequent breakdown. He worked throughout the marriage and continues to be employed full-time. While he was off work due to health reasons in 2009/2010 and 2012, there is no evidence indicating that he cannot continue to work full-time in his current employment. The evidence of the respondent is that he is 65 years of age, is eligible to retire and would like to do so in the near future but in the meantime, he remains employed in a stable, well-paying job. There is nothing in the affidavit material to indicate that the respondent and the claimant had made plans during the marriage that the respondent would retire from his employment at age 65 years.
[28] There is no evidence before me of any financial consequences to the respondent arising from care of a child of the marriage. Both the respondent and the claimant provided financial support to their son James during a brief period of unemployment when he was no longer a “child of the marriage”. I cannot find on the evidence before me that the respondent has suffered any economic hardship arising from the marriage and its breakdown and thus the respondent has not established an entitlement to spousal support based on the compensatory model.
Vancouver Interim Spousal Support No Entitlement Lawyers No Needs Based Non Compensatory Entitlement Says Court
[29] It remains open to examine the respondent’s present circumstances to determine if there is any evidence of need and entitlement to support on non-compensatory grounds.
[30] The information contained in the respondent’s financial statement is no longer accurate due to the sale of the former family residence. There is no evidence regarding the respondent’s current housing expenses but in light of the fact that he is no longer paying the mortgage, taxes and insurance for the former family home or his portion of the personal loan secured by the former family home, it is likely that his annual expenses have decreased since December 2016 rather than increased.
[31] There is no evidence as to whether the respondent is enjoying a standard of living that is comparable to or lower than the standard he enjoyed while married to the claimant although I do note that his income has increased significantly since the parties separated in July 2014. The claimant submits that the respondent has underestimated his 2016 income and extrapolation of the pay stubs attached to his April 2016 financial statement suggest that his income in 2016 was approximately $86,683.00.
[32] The respondent’s principal argument for support is based on the fact that there is disparity of income between the respondent and the claimant and that disparity will increase if the respondent chooses to retire from his employment, prior to resolution of the issue of the division of family property and family debt. I should note that I have some concerns about the respondent’s calculation of his estimated post-retirement income, which does not include any interest he may be entitled to receive in the claimant’s employment pension in the division of family property.
[33] Counsel for the claimant referred me to the case of Lee v. Lee, 2014 BCCA 383, which provides a helpful review of the principles non-compensatory spousal support in a long term marriage where the evidence suggests that neither party has made economic sacrifices or made substantially greater contributions to the family and following the breakdown of the marriage, both parties were self-sufficient but had disparate earning capacities. In that case, the BC Court of Appeal upheld a trial decision to refuse spousal support to a spouse on the non-compensatory model. The Court concluded that while the case law in British Columbia would have permitted an award of spousal support to the appellant, given the length of the parties’ marriage and the expansion of the meaning of “need” in the family law context, it was not a material error on the part of the trial judge to refuse support in the circumstances of that case. The Court noted that “the mere fact of marriage or its breakdown does not activate a general tool of redistribution.” The Court referred to a decision of the Alberta Court of Appeal in Griffiths v. Griffiths, 2011 ABCA 359, where the husband sought spousal support to maintain his lifestyle and spending habits after the parties 24 year marriage broke down. The Court noted that:
[6] 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.
[34] The Court also referred to the decision of the Ontario Court of Appeal in Farrar v. Farrar (2003), 63 O.R. (3d), 141 in which the husband claimed spousal support for a period of time during which he was retired and earning pension income of $37,000 per year, while his wife was still working and earning $74,000 per year. The Ontario Court of Appeal set aside a trial decision to award Mr. Farrar spousal support solely on the basis that Mr. Farrar was in need and Ms. Farrar had the ability to pay. The Court noted at paragraph 60 that “the differential in income alone did not provide a basis for awarding spousal support”.
[35] The disparity of incomes between the respondent and the claimant is not a basis alone for awarding the respondent spousal support in this case. The evidence before me in this case suggests that the respondent is currently economically self-sufficient and can continue to be if he remains employed in his current position. While the respondent may choose to voluntarily cease employment, thereby creating a “need”, he has not yet done so and it is not clear from the evidence before me as to when this might occur. Assuming that the respondent does choose to cease his employment, there is insufficient evidence before me to determine what the respondent’s post-retirement income and expenses might be in order to determine if he will, in fact, need spousal support.
Vancouver Interim Spousal Support No Entitlement Lawyers Note Application Dismissed
[36] On the basis of the affidavit material before me, the evidence falls far short of establishing that the respondent has any need that would justify an interim award of spousal support and accordingly, the application for interim spousal support is dismissed.
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