BC Spousal Support Lawyers

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A very interesting case about BC spousal support came to my attention recently: Guttmann v. Guttmann, 2013 BCCA 78.   It is particularly interesting because it may represent a significant change in how the courts deal with BC spousal support awards.   More specifically, it is the presumably the first Court of Appeal decision in Canada that upholds annual, income-based readjustments of BC spousal support payments.

BC Spousal Support Lawyers -How Do I Get BC Spousal Support?

Before I get into the facts of the case, though, it is important that I briefly describe ‘spousal support’, as it is a very complicated (and heavily litigated) area of the law.

To begin, spousal support is, quite simply, a payment from one spouse to another.  But, it isn’t an automatic payment.   Instead, there are several hurdles that need to be cleared before someone can receive spousal support.

BC Spousal Support Lawyers – Entitlement to BC Spousal Support

First, in order to receive any payments, the parties must have been married or lived in a marriage-like relationship for at least two years.

The next step is to consider is whether or not there is ‘entitlement’.  In other words, a person who wants to receive spousal support payments must show the court that they are entitled to it.

There are two ways (i.e. grounds) in which a spouse can be entitled to spousal support:

1. Compensatory Grounds; and
2. Non-Compensatory Grounds.

BC Spousal Support Lawyers-Compensatory Spousal Support

Under the compensatory grounds, a spouse is entitled to spousal support if they agreed (even implicitly) to not maximize their earning potential and instead, for instance, raise the children and/or accept a lower paying (but part-time) job.  At the same time, then, the other spouse is able to leave the home and pursue their employment potential.

BC Spousal Support Lawyers – Non Compensatory Spousal Support 

Under the non-compensatory grounds, a spouse is entitled to spousal support if one spouse (truly) needs the money and there is a big difference between the incomes of the two spouses.  In this case, the court will say, “There is a social obligation that the disadvantaged spouse be supported by the other spouse who is earning more money.”

If there is entitlement, then the court will require one spouse (the “payor spouse”) to pay spousal support to the other spouse (the “recipient spouse”).  The amount of money payable in support will typically be dependent on the incomes of both spouses and the length of the marriage.   Put simply, the longer the marriage and the larger the difference in incomes between the parties, the more money the payor spouse will need to pay to the recipient spouse.

Novel BC Court Of Appeal Spousal Support Decision

Now, moving along to the case, here are the facts of Guttmann v. Guttmann:

1. The husband and the wife were married for 22 years.
2. The husband was a long term employee of a company and earned the following incomes:
3. 2009: $54,337.00;
4. 2010: $51,865.00; and
5. 2011: $78,405.00, including $20,150.00 in bonuses.
6. The husband was not working full-time in 2010.
7. In the first four months of 2012, the husband already earned $31,134.00, including $13,150.00 in bonuses.
8. There no evidence that the husband would not continue to earn bonuses (in the future).

The Chambers Judge who heard this case (initially) made the following important decisions/findings of fact:

1. For the purpose of assessing spousal support payments, the husband earns $70,000.00/year and the wife earns $31,700.00/year.
2. Spousal support was reviewable annually.

Now, the husband did not agree with the Chambers Judge’s decisions and appealed those decisions to the B.C. Court of Appeal.

Here are the important grounds of appeal that the husband made (as well as the issues with those grounds):

1. First, the judge assessed the husband’s income at $70,000.00.
2. You may be thinking, “That was never an amount that the husband earned”.
3. And, that’s correct.
4. The husband, in his appeal, argued this, as well.
5. However, the Court of Appeal indicated that this number was actually favorable to the husband because if he continued to ‘keep pace’ with his 2012 earnings thus far, his income would exceed $100,000.00.
6. Also, instead of averaging the last three years of taxes, which is often done when a payor’s income varies from year to year, the Chambers Judge viewed his 2011 income as the best indicator of his future income and so assessed his income at $70,000.00.
7. The Court of Appeal seemingly agreed that $70,000.00 was an arbitrary figure.
8. However, the figure was nonetheless favorable to the husband and the Court of Appeal kept the husband’s income at $70,000.00 for the purpose of spousal support.
9. Frankly, it is likely that the Court of Appeal would have assessed his income higher than $70,000.00 (if they had made the decision, initially).

Annual Correction of BC Spousal Support Ordered!

Next, the Chambers Judge ordered that the amount of spousal support be reviewable on an annual basis (and that there is no set end-date).

1. The husband appealed this order, arguing that there should be more certainty regarding when they payments to his former wife will cease.
2. However, the Court of Appeal upheld the Chambers Judge’s decision, indicating that the husband could always re-attend court if there is a change in circumstances, seeking to terminate his spousal support obligation.

This last point is particularly interesting.

Often in family law, spouses who pay spousal support seek certainty in their spousal support payments.  In other words, payor spouses want to know exactly how much they have to pay and for how long.   However, this case stands for the proposition that spousal support can be reviewable each year.  And, if a payor spouse’s income increases, then the amount of spousal support payable to the recipient spouse may actually increase over time, too.

It appears that this case is the first decision from a Court of Appeal (anywhere in Canada) to uphold this sort of order (i.e. that a spousal support order requires annual, income-based readjustments).

In the future, it will be interesting to see if other provinces use this case in making their decisions.   If they do, then annual, income-based readjustments may become the norm across Canada.

I hope this article helps you understand your rights and obligations to BC spousal support. Call us toll free at 1-877-602-9900 if you need more information.