Lorne N. MacLean, QC founder of the award winning Calgary Vancouver Spousal Support Lawyers team at MacLean Law, is proud to once again receive Top Choice Award’s prestigious Best Vancouver Family Law Firm award. This award is the third best family law firm in Vancouver award MacLean Law has been awarded in the last 4 years.
Our Calgary Vancouver Spousal Support Lawyers firm has 5 offices located in:
- downtown Vancouver
- South Surrey
- Richmond
- Kelowna
- Fort St. John
as well as a downtown Calgary Vancouver Spousal Support Lawyers Calgary office located in Bankers Hall.
When you have a high stakes spousal support case it is just common sense to hire lawyers that are repeat winners of the best family law firm in Vancouver.
Calgary Vancouver Spousal Support Lawyers Explain Spousal Support Rules
Our skilled and multiple award winning Calgary Vancouver Spousal Support Lawyers know people want to understand what their rights and obligations regarding spousal support are.
The recent BC Supreme Court case of Fleming v. Fleming 2016 BCSC 2408 sets out the statute law, case law, Spousal support advisory guideline rules for both entitlement, amount and duration:
[37] In Gisler v. Gisler, 2015 BCSC 323, both parties were represented by counsel but because neither client was financially sophisticated I reviewed some basic principles underlying entitlement to and calculation of spousal support for their benefit. I will repeat them here since the explanation may be helpful to an understanding of the outcome in this case:
[54] Spousal support is a creature of statute: both the Divorce Act [section 15.2] and the Family Law Act [part 7, division 4] empower the court to require one spouse to pay support monies to the other. Both statutes leave a broad discretion to judges in individual cases for all three dimensions of spousal support, namely: (1) entitlement, (2) duration, and (3) amount.
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[55] The threshold question is entitlement. This is determined with reference to certain “objectives” set out in both statutes in almost identical language. Both statutes mandate that these objectives be taken into account. The objectives include:
· recognition of any economic advantages or disadvantages to the spouses arising from the relationship between them or its breakdown;
· apportionment between the spouses of any financial consequences arising from the care of their children, beyond the duty to provide support for the children;
· relieving any economic hardship of the spouses arising from the breakdown of their relationship; and
· as far as practicable, promoting the economic self-sufficiency of each spouse within a reasonable period of time.
[56] The leading decisions from the Supreme Court of Canada dealing with this subject have articulated three separate bases for entitlement to spousal support: compensatory, non-compensatory, and contractual support: Moge v. Moge, [1992] 3 S.C.R. 813 (compensatory support); Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (non-compensatory support); and Miglin v. Miglin, 2003 SCC 24 (contractual support).
[57] Compensatory principles address the contributions of a spouse to the relationship and the spouse’s losses upon its breakdown. The classic application, although by no means the only one, arises in relationships where one spouse did not pursue employment outside the home in order to care for the children. The end of that relationship places the spouse at an economic disadvantage, which compensatory support should address (“foregone careers and missed opportunities”: Bracklow).
[58] Non-compensatory principles address the needs of a spouse after the breakdown of the relationship. This kind of support arises out of the relationship itself and is based on the social obligation of a spouse to look after a former partner who is in difficulty, rather than letting that burden fall upon the public.
[59] Self-sufficiency is only one objective, and is only a goal “insofar as practicable”. In determining what is practicable, the court will consider all circumstances, including the recipient spouse’s age, gender, skills, education, opportunity for retraining, and the realistic prospect of the spouse finding a job that enables him or her to become self-sufficient: Tedham v. Tedham, 2005 BCCA 502.
[60] However, no one principle or set of objectives dominates the analysis. A court should balance the various relevant factors and strike the balance that best achieves justice in the particular case. This is a highly fact-specific exercise in each case.
[61] Marriage alone does not automatically entitle a spouse to support upon its dissolution. Further, no single statutory objective is paramount, so both the compensatory and non-compensatory grounds can be used to justify entitlement. Generally speaking, however, any significant disparity in incomes or standards of living at the end of a marriage or relationship will usually give rise to an entitlement to some spousal support for some period of time.
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[62] The leading case law referred to above addressed only entitlement and not the more mundane and difficult issues of amount and duration with which the trial courts are called upon to grapple on a daily basis.
[63] Under the Family Law Act, if entitlement to spousal support is established having regard to the objectives set forth above, then s. 160 of the Act makes it mandatory for the other spouse to provide support. The amount and duration of that support must then be determined on a consideration of the conditions, means, needs and other circumstances of each spouse including the three circumstances specifically identified in s. 162 of the Act. These circumstances are identical to the three “factors” also specified as mandatory considerations under s. 15(4) of the Divorce Act and include:
· the length of time the spouses live together;
· the functions performed by each spouse during the period they lived together; and
· any agreement between the parties or any order relating to the support of either spouse.
[64] Spousal misconduct is not a factor to be considered in awarding spousal support except to the extent conduct arbitrarily or unreasonably (a) causes, prolongs or aggravates the need for spousal support, or (b) affects the ability to provide spousal support [s. 166, FLA].
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[65] In practice, the Federal Spousal Support Advisory Guidelines released by the Federal Department of Justice are usually applied in most cases to determine the amount and duration of spousal support, whether under the Divorce Act or as a “useful tool” under the Family Law Act. While these Guidelines are only “advisory” in nature, British Columbia is one of the provinces which has strongly endorsed their use: Yemchuk v. Yemchuk, 2005 BCCA 406, Chutter v. Chutter, 2008 BCCA 507.
[66] The Guidelines provide two basic formulas for determining the amount and duration of spousal support. The first is the “without child support formula” and the second is the “with child support formula”. As the names suggest, the dividing line between the two is the absence or presence of a dependent child and a concurrent child support obligation at the time spousal support is determined.
[67] Both formulas use income sharing as the method for determining the amount of spousal support. The formulas then produce ranges for the amount and duration of support, not just a single number. The precise number chosen within that range will be determined by the court depending upon the facts of any particular case.
[68] The starting point under both formulas is the definition of income used in the Federal Child Support Guidelines. Generally speaking a spouse’s annual income is determined using the sources of income set out under the heading “total income” and aggregated on line 150 of an individual’s income tax return. The Guidelines also specify certain adjustments which can then be taken into account. If fairness requires, the court can have regard to the fluctuations in a spouse’s income over the last three years to determine a reasonable amount in light of any pattern of income. As well, if a spouse holds an interest in a private corporation, all or part of that corporation’s pre-tax income can be taken into account if appropriate to reflect all the money available to the spouse for the purposes of support payments.
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[69] Finally, the Guidelines provide for the concept of imputing income to a spouse in a wide variety of appropriate circumstances including such things as:
· a spouse being intentionally underemployed or unemployed;
· diversion of income;
· tax exemptions;
· unreasonable deduction of expenses from income;
· failing to reasonably utilize property to generate income; and
· failing to provide income information when under a legal obligation to do so.
How Calculation Works Explained By Calgary Vancouver Spousal Support Lawyers
[70] The without child support formula referred to above is built around two crucial factors: the gross income difference between the spouses and the length of the marriage. Both the amount and the duration of support increase incrementally with the length of the marriage. The justification for this approach is the concept of “merger over time”: as a marriage lengthens, spouses more deeply merge their economic and non-economic lives, with each spouse making countless decisions to mold his or her skills, behaviors and finances around those of the other spouse. The longer the marriage, the more the low income spouse will be protected against differential loss of the marital standard of living at the end of the marriage.
[71] The duration aspect of the formula ranges from .5 to 1 year for each year of marriage. However support will be of indefinite duration, i.e. no end date specified, if the marriage is 20 years or longer in duration or the marriage lasted five years or longer, when the years of marriage and age of the support recipient (at separation) added together totals 65 or more (the so-called “rule of 65”).
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