Indefinite Spousal Support In Short Marriages is something many family law clients and some family lawyers are not clear on. A recent BC Court of Appeal case dealt with a 4 year marriage with young children and upheld a trial division that ordered indefinite spousal support.
Our Indefinite Spousal Support In Short Marriages lawyers warn you to remember shared parenting arrangements can significantly impact the amount an duration of spousal support by sharing the economic costs more equally on careers and the time and expense spent raising children.
We were winning counsel at trial for Mr. Leskun at trial where we obtained a very low spousal support payment from him to his ex wife after a long marriage and acted for him to try to reduce this low payment further in Leskun v Leskun in the SCC. Leskun established principles trying to limit reviews of support which the BC Court of Appeal in Rouse said are likely now effete. Reviews allow cases to get settled but the Supreme Court of Canada seemed unaware of this.
Vancouver Indefinite Spousal Support In Short Marriages
Our top Indefinite Spousal Support In Short Marriages need to educate people on how the Spousal Support Advisory Guidelines direct calculations for amount and duration for spousal support in cases involving both children and no children.
In Roeske the ex-husband appealed an order related to past and future child and spousal support arising out of a relationship that spanned less than four years. He argued that the trial judge committed several errors including:
(1) failing to base his award for retroactive support on an interim order;
(2) failing to impute income to the respondent and misapprehending evidence regarding the respondent’s ability to earn income;
(3) ordering future spousal support for an indefinite duration; and
(4) including the appellant’s post-separation increases of income in the calculation of spousal support
The ex-husband’s appeal was dismissed.
The key issue for this blog is whether indefinite support in short “with child” marriages is the law in Vancouver BC?
Was the BC Court of Appeal correct to uphold a trial decision that found the ex-wife was entitled to ongoing spousal support on both compensatory and non-compensatory grounds for an indefinite duration, subject to an application for a review at the option of either party after July 1, 2025?
The trial judge found:
[58] Further to what I outlined above, the judge based his decision that Ms. Dighe was entitled to spousal support on both compensatory and non-compensatory grounds on an assessment of the factors outlined in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and certain well-established principles, stating:
[100] I adopt my discussion of the legal principles involved in relation to spousal support set out in McGrail v. McGrail, 2016 BCSC 104, at paras. 95-100. There, I referred to a number of leading authorities on these topics, including the decision of the B.C. Court of Appeal in Chutter v. Chutter, 2008 BCCA 507, the decision of the Supreme Court of Canada in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 1999 CanLII 715 (SCC), and with respect to retroactive spousal support, D.B.S; and Kerr. I stated:
[95] The factors and objectives of a spousal support order for set out in ss. 15.2 (4) and 15.2 (6) of the Divorce Act. They read as follows:…
[96] All of the factors referred to in s. 15.2(4) and all four of the objectives under s. 15.2(6) must be taken into account. No single objective is paramount. The four objectives set out in s. 15.2(6) can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 [Moge].
[97] Section 161 of the FLA is substantially the same as s. 15.2(6) of the Divorce Act.
[98] The relevant principles regarding spousal support were reviewed and summarized by Madam Justice Rowles, for the Court, in Chutter v. Chutter, 2008 BCCA 507 at paras. 45 to 61. Madam Justice Rowles at para. 47 states that the Supreme Court of Canada has identified three grounds for entitlement to spousal support: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support, citing Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 at paras. 15, 41-42.
[99] With respect to orders for retroactive spousal support, in D.B.S. v. S.R.G, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231 [D.B.S.] the Supreme Court of Canada states that in determining whether to make a retroactive award of child support, the court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix: page 275-276.
[100] In Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269 [Kerr] the Supreme Court stated that while D.B.S. was concerned with child as opposed to spousal support, similar considerations are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support; Kerr, para. 207. Nonetheless, the same flexibility and regard for a holistic view of the matter on its merits is appropriate in the case of retroactive spousal support: Kerr, para. 212.
Indefinite Support Default Under SSAG 2008 and revised User Guide 2016
The BC Court of Appeal provided a lucid analysis that should held family clients and lawyers understand the law in this area:
[65] Given the significance of this point to Mr. Roeske’s submissions on appeal, it is of assistance to set out the manner in which the judge framed the issue and the commentaries in question as outlined in the Reasons:
[108] As noted, the respondent argues that spousal support should now be terminated. In effect he argues that the grounds for spousal support no longer exist, and that his obligations have been satisfied by the financial support and spousal support he has already paid to date. Based on my previous comments, it should be apparent that I do not agree. In my view, compensatory and non-compensatory grounds continue to exist.
[109] This conclusion is supported by the commentary in the RUG, chapter 8(n), as follows (at 43–44):
(n) Short marriages, young children (SSAG 8.5.5)
This has now emerged as one of the major problems under the with child support formula. Lawyers argue for, and courts grant, a short time limit at the initial stage where the marriage is short and there are young children. The time limit on spousal support is typically fixed at the number of years of marriage or cohabitation, e.g., 4 years of support after a 4-year marriage, even though the recipient has the primary care of children aged 1 and 3.
Such short time limits will only rarely be the right outcome at the initial hearing. The vast majority of these orders should be “indefinite (duration not specified)”. Often a review will be required in these indefinite orders.
Remember that there are two tests for duration under the with child support formula. Not just the length-of-marriage test, but also the age-of-children test. The second test is more important for shorter marriages, with a range from the time the youngest child commences full-time school to the upper end of the last child finishing high school.
These are usually cases with strong compensatory claims. The compensatory claim derives less from the past disadvantage during the marriage and much more from the future disadvantage for the parent with ongoing primary care of the children, as identified in s. 15.2(6)(b) of the Divorce Act.
[…]
The imposition of short time limits in these cases reflects a failure of compensatory analysis. A more careful approach is needed. The most obvious area for such analysis would be the basic formula cases, where the recipient continues with a disproportionate share of child care going forward. In the more complex custody cases, like shared, split, hybrid or step-child cases, there may be circumstances that warrant shorter time limits, especially the step-child cases. A short time limit would normally mean a quick “bounce back” by the support recipient, someone with pre-existing skills who can find good employment reasonably quickly and become truly “self-sufficient.”
[Emphasis added in Reasons.]
[110] The RUG commentary at ch. 18 is also helpful (at 95):
Self-sufficiency is only one of the four objectives stated in s. 15.2(6), said the Supreme Court of Canada in Leskun v. Leskun, 2006 SCC 25, and a qualified one at that. There is no absolute “duty” on a former spouse to become self-sufficient.…
Moge reminded us all of some important lessons about self-sufficiency: courts must be realistic about self-sufficiency; courts must not underestimate the labour market disadvantages faced by recipients returning to work; and courts should not be too quick to “deem” or “predict” that recipients will achieve self-sufficiency in future…
[111] And at 99:
Time limits under the with child support formula are “softer”, with initial orders “indefinite” and time limits coming later through variation or review, perhaps not until a “crossover” to the other formula. Under this formula concepts of “self-sufficiency” will be shaped by the strongly compensatory nature of many of the claims. For marriages shorter than 20 years, it is anticipated that at some point the economic disadvantages of the recipient will be fully compensated and, if there is no non-compensatory claim left, a time limit will be imposed and spousal support terminated…
[112] In this case it cannot be said that the claimant is a person “with pre-existing skills who can find good employment reasonably quickly and become truly ‘self-sufficient’” (RUG at 44).
BC Indefinite Spousal Support In Short Marriages Lawyers
[113] Although in this case parenting is shared, the claimant continues to share equally in parenting duties, which limit her career options, as I have explained.
[114] I conclude that the spousal support order should be indefinite. In view primarily of the short duration of the marriage relationship, I accept the claimant’s submission that a review of spousal support in approximately three years is warranted. The question will be whether the claimant continues to be entitled to spousal support in the circumstances then existing. The review may take place at the option of either party anytime after July 1, 2025.
[Emphasis added.]
[66] Given that parenting was shared, the issue then becomes whether, as Mr. Roeske submits, the judge erred in law by considering the RUG commentaries in the manner he did.
[67] In my view, he did not. In Namdarpour v. Vahman, 2019, BCCA 153, Justice Savage referred to the SSAG observing that:
[139] …In Redpath v. Redpath, 2006 BCCA 338, this Court concluded that if a judge orders a quantum of spousal support that is substantially lower or higher than the range provided by the SSAG and there are no exceptional circumstances to explain the anomaly, then this may constitute a reversible error (at para. 42.)
[68] He then referred to the RUG in considering the “integrated approach”, being the interrelationship between duration and amount of spousal support:
[152] The “integrated approach” continues under the current SSAG. Ignoring duration is a misapplication of the formula: see SSAG, s. 7.5.1; C. Rogerson & R. Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016) at 27.
[69] The parties did not specifically raise as an issue on appeal whether the RUG should be treated in a manner similar to the SSAG; nor would I consider answering this question to be necessary for the disposition of this appeal. That is because, reading the judge’s reasons contextually and as a whole, it is evident that he was prepared to consider the RUG as part of his analysis without being obliged to follow it.
[70] The RUG Commentary in chapter 8(n) “Short marriages, young children” may well be of assistance in situations where parents share custody or co-parent.
[71] In his factum Mr. Roeske submits that the judge “fails to explain how [the cited passage] applies, given that [it relates] to recipients with primary care of the children, as opposed to this situation of shared parenting”.
[72] The “with child support” formula under chapter 8 of the RUG is comprised of a grouping of six formulas. One of these is the basic formula, involving a lower-income parent with primary care: Ch. 8(e). Another is the shared custody formula: Ch. 8(f).
[73] After reviewing these formulas, the RUG discusses the special problem which arises regarding the duration of support in short marriages involving young children: Ch.8(n). In my view, this section (at 44) may well be a relevant consideration to “with child support” formula cases, including those involving shared custody or parenting as is seen by the excerpt from the RUG quoted at para. 65 above.
[74] I would add that chapter 8(n) of the RUG specifies that the “vast majority” of support orders involving short marriages and young children “should be ‘indefinite (duration not specified)’”, often with a review required: at 44. In my view, this is consistent with the shared custody formula, under which all initial orders should be indefinite.
[75] Although not determinative, support for this conclusion is found in the SSAG itself [Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008)], where the subsection regarding short marriages with young children is in a section concerning duration of support under the basic formula (s. 8.5): see SSAG 8.5.5.
Our top Indefinite Spousal Support In Short Marriages lawyers can help guide you in this complex area.
