Vancouver spousal support guidelines lawyer alert and Kelowna, Surrey and Fort St John spousal support and BC Family Law Offices spousal support strategy update. New BC Appeal Court spousal support ruling says no to equalizing incomes through spousal support guidelines in shared child custody case and reverses findings husband failed to disclose his income properly.
Our medium to high income spousal and child support lawyers handle dozens of medium to high net worth family income and family asset cases each year including arguing cases such as the leading spousal support decision on use of capital, spousal support reviews and self sufficiency incentives of Leskun from our Supreme Court of Canada.
The payment of spousal support including, both, the amount and for how long it is paid can add up to hundreds of thousands of dollars. It is important that you have a lawyer who protects your rights on such a critical issue related to your financial future. Call us toll-free across British Columbia or Alberta at 1 877 602 9900 Or contact us. Don’t be scared and confused about your spousal support rights when help is immediately available.
Our British Columbia Court of Appeal has just released a very interesting decision in Armstrong where they overturned a trial judgment that had found a husband guilty of nondisclosure of financial means and that had awarded an exact equalization of income of both of the spouses. This equalization of income’s was higher than what the spousal support advisory guidelines range indicated was the fair amount payable. The marriage was 15 years long and the parties shared custody who turned 15 on the day of this decision being rendered. This writer points out that while the Court of Appeal says the award was in excess of what the spousal support advisory guidelines calculated, in cases of shared custody one of the payment amounts includes an exact equalize nation of income in both households. The concept of equalizing the income in both households in a shared custody arrangement is that there should not be a “have” and a “have not” household standard of living.
The case is also important for pointing out that trial judges must be very careful before imputing income based on allegations of nondisclosure. In this case the husband had evidently provided all required attachments to his financial statement and had produced financial statements for his business. Commonly, courts are not surprised to hear that at a time where spousal and child support is being sought the owner of a business will “coincidentally” be having one of their worst financial years ever. Family lawyers and trial judges are a skeptical lot as a result of this phenomenon, however, the Armstrong decision makes it very clear that there must be a solid evidentiary basis for making a finding that there has been nondisclosure.
Further, the Court of Appeal in this decision pointed out that the wife had failed to request necessary financial documentation that she would have been entitled to under the court rules before alleging for the 1st time in the courtroom that the husband had not produced further documentation on the issue of his corporate income and expenses.
In addition the BC Court of Appeal pointed out that while there is a $5000 fine available to the court to impose in cases of nondisclosure in this case no such fine was sought by the wife and it was awarded by the Judge at the judges instance alone.
In the end result, the husband was found to have been innocent of the allegation he had not provided disclosure, the $5000 fine was set aside and the equalization’s of income was found to be contrary to the spousal support advisory guidelines. The court also was concerned over the fact that the trial judge had decided the issue of support before the issue of property division which is contrary to well settled law in Canada and British Columbia in particular. Finally the court found the issue of a review of the support quantum and duration would occur in 7 years was also not appropriate. The trial judgment was set aside and the original orders for child and spousal support reinstated pending a new hearing on these issues with better evidence before the court.
We provide the following extract on the issue of what the law of British Columbia is on equalization-or not- of the spouses income in spousal support cases.
3. Did the trial judge err in awarding spousal support in excess of the SSAG ranges and without a review for seven years?
[68] The trial judge reviewed the compensatory and non-compensatory bases for spousal support as articulated in Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, concluding that “[t]he Supreme Court thus endorsed an expansive compensatory basis for spousal support, citing as its purpose the equitable distribution of the economic consequences of the marriage” (para. 58). However, he then awarded Ms. Armstrong indefinite monthly spousal support of $1,680, subject only to a review after seven years, as an “amount sufficient to leave the parties with an equal share of net family income, after taking into account child support” (para. 66). In assessing this amount, the trial judge relied on Divorcemate calculations provided to him by counsel that included the imputed incomes of $100,000 for Mr. Armstrong and $35,000 for Ms. Armstrong, which resulted in a net equalized disposable income for each party of $4,415.
[69] The equalization of the net disposable income of the parties is not the legal test for compensatory support, which test is well summarized in the headnote to Moge:
The doctrine of equitable sharing of the economic consequences of the marriage or its breakdown, which the Act promotes, recognizes and accounts for the economic disadvantages or advantages flowing from the role adopted by the spouses in the marriage.
This doctrine does not involve the equalization of the parties’ net disposable income but the equalization of the economic consequences of the marriage or its breakdown. This accords with the factors to be considered in s. 15.2(4) of the Divorce Act which directs a consideration of “the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.”
[70] As discussed above, the means of each spouse includes his or her capital base. With respect, in my view the trial judge’s division of property may have amounted to an effective reapportion of the family assets in favour of Ms. Armstrong in the manner noted above. Such an effective order would be a relevant factor to any award for compensatory spousal support.
[71] As well, in my view the imposition of a review provision seven years after the “Final Order” does not fall within the parameters for such orders as outlined in Leskun at paras. 36 and 37. As discussed in that case, review orders play a very limited role and are restricted to situations where there is genuine uncertainty about the effect the breakdown of the marriage will have on the future economic circumstances of the parties. In circumstances where a review order is appropriate, it should specify the basis for the uncertainty and which aspects of the support order are to be reviewed.
The payment of spousal support including the amount and for how long it is paid can add up to hundreds of thousands of dollars. It is important that you have a lawyer who protects your rights on such a critical issue related to your financial future. Call us toll-free across British Columbia or Alberta at 1 877 602 9900 Or contact us. Don’t be scared and confused about your spousal support rights when help is immediately available.
