The experienced High Calgary Matrimonial Property Spousal Support lawyers at MacLean Law track decisions affecting high net worth Calgary family law clients and those include cases involving High Calgary Matrimonial Property Spousal Support so we remain on the cutting edge of high net worth family and divorce law. Our High Calgary Matrimonial Property Spousal Support lawyers operate from our downtown Calgary offices as well as 5 offices across British Columbia.
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In Corrigan v. Ewel, 2017 CarswellAlta 499 (Alta. Q.B.) all of the crucial issues related to High Calgary Matrimonial Property Spousal Support were in play. High Calgary Matrimonial Property Spousal Support cases emphasize the interplay between how economic disadvantage at the end of a long marriage can be satisfied by a substantial matrimonial property award such that spousal support is reduced or rendered unnecessary.
The High Calgary Matrimonial Property Spousal Support decision in Corrigan v. Ewel is at the very low end for total amount and duration of spousal support in long relationship high net worth matrimonial property division cases.
This case involved an obvious entitlement to support on compensatory grounds, however, the court made a strictly time limited and modest 1 year award of support at $7500 per month on the basis the large property settlement largely satisfied the wife’s economic disadvantage. In this Alberta Queen’s Bench High Calgary Matrimonial Property Spousal Support decision:
- the parties were together 34 years
- the wife received an equalization payment and other benefits totalling more than $4,000,000 of the $8,000,000 matrimonial property.
- the husband earned about $800,000 per year from the business he would be keeping
- the Court expected the wife to earn income on the $4,000,000 settlement and estimated a rate of return of 4% to 4.5%%
- The wife’s “realistic “ as opposed to “wish list” budget was roughly $150,000
- the husband’s equal share of the matrimonial property was largely tied up in the business he retained which had latent distributive taxes and other disposition costs he might incur when he retired.
High Calgary Matrimonial Property Spousal Support Lawyers
In BC, an award of property to the wife of this amount would clearly impact spousal support. In a similar matrimonial property judgment involving a $ 4,000,000 award in Chutter, the BC Court of Appeal made a spousal support award below the low SSAG amount range. However, an award of $4,000,000 in Martin BCCA still was combined with an award of spousal support above the high end of SSAG in the amount of $10,000 monthly. Here is what the BC Court of Appeal did:
[16] The appellant relies in particular upon this court’s decision in Chutter v. Chutter, 2008 BCCA 507, wherein Madam Justice Rowles, for the Court said, in considering a claim for compensatory spousal support:
[123] Taking into account the facts of this case and the various factors referred to in the Guidelines at s. 9, it appears to me that this is a case in which an order for spousal support ought to be made, although not in the amount sought by the appellant of $4,000 per month. The appellant has a good claim for compensatory support and her income and income-earning capacity are much less than those of the respondent. The appellant does have a base of assets from which she can derive income but the same is also true of the respondent. The respondent is able to pay monthly support and if the appellant receives some monthly support from the respondent, both parties would be able to have a lifestyle similar to the pre-separation standard. There are two factors that militate in favour of an amount lower than the suggested range in the Guidelines. The appellant has the advantage of having a very substantial sum in RRSPs and any appreciation in the value of the plans, whether through interest, dividends, or increase in value of equities, is tax-sheltered until withdrawal. Unlike the respondent, the appellant is not faced with having to save money to ensure an adequate income upon retirement. The other consideration is the fact that the appellant’s home, valued at between $1,850,000 and $1,950,000, is a non-income producing asset and is increasingly likely to exceed her needs as she approaches retirement. In assessing the means and needs of the appellant in this case, it appears to me that the extent to which her choice of housing exceeds her needs, while still being commensurate with the marital standard, should also be considered in arriving at the amount of spousal support to be paid.
The trial judge relied on the 2014 Alberta Court of Appeal decision of Alpugan v. Baykan, to say the husband’s income earned from is business should not be double dipped where the Court of Appeal noted:
32 With the exception of the spousal support payable for 2006, which we will discuss further below, we would not interfere with the trial judge’s award of spousal support for the years after division of the property took place. In our view, he properly applied the decision of the Supreme Court of Canada in Boston v. Boston, [2001] 2 SCR 413, which pointed out that “double-counting” would occur if a former spouse, having obtained his or her share of the property, could also obtain support based on what the other party earned from his or her share of the divided property. This situation was described as being “inherently unfair”.
33 Further, the trial judge was correct in considering the income that would have been available to her if she had invested the capital property that she received prudently. In Lane v Lane, 2012 ABCA 2 (CanLII), this Court observed that a trial judge “did not err in taking into account the wife’s failure to earn income from a portion of her matrimonial assets” (para 22). Here the trial judge found that the appellant had “essentially destroyed” her share of the investment portfolio which he characterized as having been “an income producing asset of the marriage” (para 13). He estimated that prudent investment of her share of the portfolio, based upon a 4 per cent return, would have yielded her annual income of $64,000.00.
Our High Calgary Matrimonial Property Spousal Support lawyers feel expert investment advisor evidence of what investments can conservatively earn should be in front of the court. Some Canadian courts have imputed an income of somewhere between 3 per cent and 4 per cent on large equalization payments. Issues arise over whether this investment income should apply to a family home and many courts have said it should not including Martin above.
The judgment of Corrigan v. Ewel contains a limited discussion of the Spousal Support Advisory Guidelines yet Chapter 12 has exceptions for high property awards and double dipping situations. The judge focussed on the Objectives of the Divorce Act and use of capital to generate income and he cited Another BC Court of Appeal case involving a of 4 million property settlement where lump sum support was paid:
70 It is analogous as well to MacDonald v MacDonald, 2005 BCCA 23 (CanLII), 37 BCLR (4th) 121 referred to by Ms. Corrigan’s counsel where the wife received a $4M property settlement and the BCCA upheld a $750,000 lump sum spousal support award to a wife whose husband earned $2.5M annually working for RBC Dominion Securities. Mr. MacDonald did not mortgage the source of his income in order to be able to continue to earn it.
Key Take Away High Calgary Matrimonial Property Spousal Support Lawyers
The key takeaway from this case is that you need a senior lawyer familiar with high net worth issues and specifically someone familiar with how a large Calgary matrimonial property award impacts spousal support and self sufficiency.
The stakes in these cases are high so it pays to call Lorne N. MacLean, QC today toll free at 1-877-602-9900.
