Vancouver Spousal Support Termination Reduction Variation Lawyers deal with cases where one spouse applies to cancel or reduce spousal support based on their decline in income, retirement, health issues or loss of their job or business failure. In today’s blog, Lorne N. MacLean, QC founder of our team of Vancouver Support Support Termination Reduction Variation Lawyers explains the test to be used in this cases where both spouses face financial hardship regardless of what the court decision is. If you need legal advice in this confusing area call us toll free across BC or in Calgary at 1-877-602-9900. Click here to see the locations and contact information on our Vancouver, Calgary, Surrey, Kelowna, Richmond and Fort St John, office.
Vancouver Spousal Support Termination Reduction Variation Lawyers
McArthur v. McArthur 2017 BCSC 541 provides guidance for our Vancouver family law clients and our savvy Vancouver Spousal Support Termination Reduction Variation Lawyers.
Here are the crucial facts:
- 22 year marriage
- Husband brings application to cancel support or vary to decrease 9 years after separation
- Husband 63 IT consultant with depression issues
- Wife 59 works part-time as a school teacher with health issues
- The couple’s marriage was a traditional one
- Result: support reduced from $2862 per month to $1850 monthly review in 2 years when husband turns 65.
Vancouver Spousal Support Termination Reduction Variation Lawyers – The Test
Here is the law that Vancouver Spousal Support Termination Reduction Variation Lawyers must apply when arguing or negotiating your case:
[29] A variation of a spousal support order is governed by s. 17 of the Divorce Act. Pursuant to s. 17(4.1), before the support order is varied, the court must be satisfied there has been “a change in the condition, means, needs or other circumstances of either former spouse” since the last spousal support order or variation was made.
[30] Within this legislative framework, the threshold test is whether there has been a “material change in the circumstances”; that is, a change that would likely have resulted in different terms if known at the time of the original order: L.M.P. v. L.S., 2011 SCC 64 at para. 33, adopting the test developed in Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.). The corollary to this principle is if a matter was known at the time of the original order, it cannot be used as a basis for variation: Murphy v. Murphy, 2000 BCSC 974; L.M.P. at para. 44; Willick at 688. Further, the change must be substantial, continuing in nature and cannot be trivial or insignificant: T.(T.L.A.) v. T. (W.W.) (1996), 26 B.C.L.R. (3rd) 319 at 333 (C.A.); Hickey v. Hickey, [1999] 2 S.C.R. 518 at para. 20 (S.C.C.); Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 at para. 49 (Ont. C.A.).
[31] In Walters v. Walters, 2011 BCCA 331, our Court of Appeal affirmed the principles which apply to the variance of support orders as those set out in Oakley v. Oakley (1985), 48 R.F.L. (2d) 307 (B.C.C.A.) at 313 as follows:
An application to vary or rescind maintenance payments will proceed on the basis of the following principles: the court is to take the amount of maintenance originally ordered as the correct amount at the time the order was made and then to consider to what extent the circumstances of the parties have altered or changed since the decree nisi was granted. The onus to show that such changes have occurred lies on the applicant. Maintenance will be varied where the balance between the parties has become so distorted that it has become unjust. Where a decree nisi is obtained by consent or where the decree nisi has incorporated maintenance provisions contained in the separation agreement made between the parties the court should not lightly disturb the order and the party seeking the variation must show not only some changes in circumstances, but conditions which arouse the conscience of the court and call for action.
[32] These principles are also found and affirmed by the Supreme Court of Canada in L.M.P. and Willick.
Retirement Wish Does Not End Support Says Vancouver Spousal Support Termination Reduction Variation Lawyers But Can Reduce It
[45] My conclusion that spousal support ought not be terminated in the context of this case is consistent with existing case law which supports the obligation to continue spousal support payments at a reduced amount, notwithstanding the payor’s desire to retire, or the payor’s difficulties in finding work: see Boston v. Boston, 2001 SCC 43; Lochhead v. Lochhead, 2014 BCSC 962; Young v. Young, 2011 BCSC 887; Chalmers v. Chalmers, 2009 BCSC 517.
[47] In Young, Saunders J. found that the husband’s early retirement did not relieve him of the obligation to pay spousal support. Saunders J. reasoned that even though Mr. Young was forced into “retirement”, he could find other employment that matched his experience:
[38] There is no question that a payor spouse who has reached the expected age of retirement, or who retires for medical reasons, may fairly be relieved of an obligation to continue spousal support payments, or have that obligation reduced, when the payee has received a share of pension entitlement, or an equalization of assets in lieu of. But I have not been referred to any authority for the proposition that when a payee spouse has a continuing entitlement to support due to her years of contribution to the marriage, a payor who is forced into early retirement is simply entitled to acquiesce in the employer’s decision, refrain from taking active steps to find other employment, and then seek relief from his support obligations. To put it another way, I do not see any justification, on the evidence before me, for not imposing upon Mr. Young the same obligation to seek employment as would apply to a payor spouse whose employment contract has been terminated through notice.
[33] The Cohen Order did not contemplate the issue of retirement. There is also no evidence before me that retirement was contemplated in the agreement between the parties that preceded the drafting of the Cohen Order. Furthermore, the inter-related difficulties that Mr. McArthur has recently faced with respect to both his emotional health and in obtaining contract work are material changes that have arisen since the making of the Cohen Order. Accordingly, I am satisfied on the evidence before me that Mr. McArthur has met the onus of establishing a change in circumstances that justifies the intervention of the Court through a variation of the Cohen Order.
Pension Income In Or Out?
Vancouver Spousal Support Termination Reduction Variation Lawyers know pension income should not routinely be used for support purposes where the paying spouse “bought out” the other spouse’s interest in it with cash or by giving a greater share of other family property.
[51] Boston sets out a general rule against double recovery; that is, spousal support should not be paid out of pension income from a pension that has already been divided as part of the property division between the spouses. However, the Court in Boston also reasons that hardship and need are exceptions to the general rule by stating:
65 Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal.
[52] In this case, Ms. McArthur’s entitlement to spousal support is not based only on a strong compensatory claim arising from a long marriage where she assumed primary care of the children while Mr. McArthur pursued a successful career. She now also has significant and continuing health issues, which have undermined her ability to be self-sufficient. The evidence before me satisfies the exception to the rule against double recovery based on need. The use of Mr. McArthur’s pension earnings for purposes of spousal support is justified in this context.
Call Lorne N. MacLean, QC or any of his team of dedicated family lawyers if you are in tough financial circumstances and are applying to reduce support or defending against such a claim. Toll free 1-877-602-9900.
