We have always warned clients not to use online tables to calculate child support because if you enter the wrong true income figures or the wrong parenting situation, disaster can easily result. A new case from our highest court shows how lawyers and judges can even get the calculations wrong if they are not careful. If you have a question on support or on BC Spousal Support and Family Property Appeals, remember deadlines apply so contact us across BC and Canada promptly.
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In the recent case of O.C. v. M.V.S.G. 2022 BCCA 140 the appellant succeeded on a spousal support appeal because the judge used an incorrect DivorceMate calculation by using the wrong income for the husband and the shared parenting formula when it was a primary residence to one parent case resulting in an award double the SSAG high end. The result meant spousal support was reduced. The appellant husband also won a removal of a costs order made against him when he applied to re‑open the trial to rectify the calculation error because ordering costs against the appellant for his attempt to rectify that error before a final order had been entered was manifestly unjust. However, it was not all good news for the husband, as the Court also allowed a cross appeal by the wife to increase the compensation payment the husband owed to wife and it also increased child support arrears payable by him.
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The Court of Appeal found the trial judge committed a palpable and overriding error in calculating periodic spousal support using a shared parenting range despite ordering primary parenting in favour of the respondent. The Court held:
Depending on the circumstances, a mistake in the use or application of a DivorceMate calculation can form the basis for correction on appeal: M.F.W. v. M.A.H., 2020 BCCA 284 at paras. 40–43; Willms v. Willms, 2020 BCCA 51 at paras. 52–53.
The spousal support was then reduced, consistent with the correct range but notably at the high end based on a long marriage and the wife’s role as primary caregiver during the marriage.
[61] As explained by Justice Dickson in Parton v. Parton, 2018 BCCA 273, once entitlement to spousal support has been established:
[43] … the amount and duration of spousal support are determined based on consideration of the conditions, means, needs and other circumstances of the spouses …. The “means” of a spouse include his or her capital base, employment income or earning capacity and any other available source of benefits or gains: Leskun v. Leskun, 2006 SCC 25 at paras. 29–32. The duration of spousal support may be for a limited term or indefinite, depending on the length of the marriage and self‑sufficiency considerations: [Chutter v. Chutter, 2008 BCCA 507] at paras. 108-109; McIntire v. McIntire, 2012 BCCA 214 at para. 17.
…
[45] While each case is fact-specific, in long marriages with children, the marital standard of living may be used to determine a reasonable measure of appropriate compensation: [Zacharias v. Zacharias, 2015 BCCA 376] at paras. 52-54. Even if the recipient spouse has attained a degree of self‑sufficiency, spousal support based on compensatory principles should continue until compensation is achieved: Chutter at para. 79; [Tedham v. Tedham, 2005 BCCA 502]at para. 60. Depending on the facts, this means that in some cases full compensation is likely to remain elusive: [Rozen v. Rozen, 2016 BCCA 303]at para. 60. In other words, although compensation for the economic disadvantage arising from the marriage is always the goal of spousal support based on compensatory principles, in some cases that goal can never be fully achieved.
[62] The parties were married for 20 years. The judge found as a fact that during the marriage, they assumed traditional roles:
[68] … [OC] generally focused on his career and kept control of the family finances. [MVSG] took on the responsibility for cooking, maintaining the home and caring for the children. Moreover, as a result of the protracted period during which the parties remained together as their relationship deteriorated, she developed depression and anxiety and other health conditions that have impacted adversely on her current earning capacity.
[63] The judge was not persuaded that MVSG “demonstrated a permanent inability to work full‑time” (at para. 61). However, he accepted that as at the date of the trial, there were “significant impediments that prevent[ed] her from securing a full‑time position” (at para. 61). These included that MVSG suffers “from anxiety and depression and other ailments that have, at least at times and to a certain extent, impaired her ability to work full‑time” (at para. 61).
[64] Given these findings, I am of the view spousal support should fall at the high end of the correct SSAG range, which is $720 per month (effective February 1, 2021). I appreciate this is $249 more than the maximum amount conceded as appropriate by OC in the appeal. However, as noted in Zilic, “[t]here are many different considerations in choosing a value within the range of spousal support” (at para. 199). These include the strength of the compensatory claim (at para. 199). A strong compensatory claim, primary parenting responsibilities and considerable need in the custodial home “should push amounts higher in the range” (SSAG at Chapter 9).
[65] All of these factors are present: a long marriage, primary parenting responsibilities for the three children of the marriage and considerable need in MVSG’s home. There was evidence at the trial that while the parties were still both in the family home, one of the children slept in a makeshift bedroom on the deck so that MVSG could rent out a bedroom to meet her financial needs. Following the divorce, there is a large disparity between the parties’ respective incomes—close to $100,000.
[66] In the circumstances of this case, $720 per month in spousal support is reasonable. Either party is, of course, entitled to apply to vary that amount in the future on the basis of a material change in circumstances.
The Test- BC Spousal Support and Family Property Appeals 1 877 602 9900
You are probably wondering so how easy is it to win BC Spousal Support and Family Property Appeals? Well, The Court of Appeal provided a lucid summary:
Standard of Review
[45] Family law orders attract a highly deferential standard of review. This includes orders for spousal support and the division of property and debt. As explained by Justice Butler in Jean Louis v. Jean Louis,2020 BCCA 220:
[24] The standard of review in family law matters is highly deferential. This Court should not intervene unless it finds a material error, a serious misapprehension of evidence or an error of law: Hickey v. Hickey, [1999] 2 S.C.R. 518; Hsieh v. Lui, 2017 BCCA 51 at para. 38. This deferential standard of review applies to all family law matters, including issues of property division: Van de Perre v. Edwards, 2001 SCC 60 at para. 14; Hallgren v. Fry, 2013 BCCA 15 at para. 8. A high level of deference is necessary in family law cases to promote finality and to recognize the importance of the appreciation of the facts by the trial judge, who has had the benefit of hearing the parties directly: Hickey at para. 12; Venables v. Venables, 2019 BCCA 281 at para. 72.
See also Zilic v. Zilic, 2021 BCCA 107 at paras. 29–32; N.K. v. M.H., 2020 BCCA 121 at para. 30.
[46] Costs orders are also reviewed on a deferential standard. This Court will generally only interfere with a costs award where the “process leading to the award was demonstrably unfair, the award resulted from an error in principle, or it is manifestly unjust”: Walsh v. Muirhead, 2020 BCCA 225 at para. 20.
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Winning BC Spousal Support and Family Property Appeals 1 877 602 9900
The key to winning BC Spousal Support and Family Property Appeals is ensuring your appeal fits this test AND your BC Spousal Support and Family Property Appeals lawyer has a proven track record of success in winning or defending these types of appeals.
Contact Lorne Maclean, QC today if you have a challenging BC Spousal Support and Family Property Appeals case.
