Experienced Spousal Support Variation Termination Lawyers at MacLean Law advance and defend these claims with finesse.
Spousal support, whether you are paying it, or receiving it, you want to know when the amount might change or stop. Will you have to keep paying, even if you lose your job? Will you receive less, if the payor claims their income has decreased? What happens when your ex spouse earns more, re-partners or gets an inheritance? You may be aware of the Spousal Support Advisory Guidelines, but be wondering how they apply, and to what extent? In this article, senior lawyer Jonathan Wai of MacLean Law’s Vancouver office discusses a recent case that looks at Spousal Support Variation or Termination. Our top rated Spousal Support Variation Termination Lawyers act across Canada through 8 offices across the nation, with 6 in BC as well as offices in Calgary and Toronto. We handle medium to high net worth spousal support cases involving professionals, high income earners, business owners and equally hardworking spouses at home raising children. Check out our spousal support page here.
Vancouver Spousal Support Variation Termination Lawyers 1 877 602 9900
In the recent case of Spence v. Spence, 2021 BCSC 2159, the court had opportunity to consider a change, called a variation, of a spousal support order. In that case, the parties were married for 20 years, and separated in 2010. There was a consent order in 2016 that the Respondent pay $7,000 per month, as his income was $350,000 per year. The Order further provided that he pay a large amount for retroactive support, such that he had effectively paid spousal support since 2010. This case helps clients and the best Spousal Support Variation Termination Lawyers settle or litigate cases on this divisive issue.
At the time of the application in 2021, both parties were in their 50’s. The Respondent had been effectively laid off from his employment, where he had been for 24 years, along with several thousand other employees). He was not terminated; he had elected to receive a severance package. He further had a new spouse, who could not work given health issues. He indicated he was going to re-train as a realtor. He sought a reduction of payments for $1,500 per month, to terminate in 3 years.
Surrey Spousal Support Variation Termination Lawyers 1 877 602 9900
The Claimant, by contrast, had largely taken care of the children during the marriage, and worked part-time. However, since, she had completed a Masters degree and was enrolled in a PhD program, and was a registered counsellor. Given COVID, she was able to see clients online only, and her income in 2020 was about $25,000.
As well, each party also had significant assets including real property as a result of the property division from the divorce years ago.
So, what happens to spousal support? Does the change in careers justify a lowering of spousal support, and termination of spousal support? Or should it continue indefinitely, as the parties were not near the common age of retirement at age 65?
The answer depended on a number of factors. First, in considering whether or not there should be a Spousal Support Variation or Termination, the court noted the threshold for Spousal Support Variation or Termination:
[23] Under the DA, a variation may only be ordered if the applicant establishes a material change in the circumstances since the order that they seek to vary was made: L.M.P. v. L.S., 2011 SCC 64 at paras. 29-46. A “material change in circumstances” may be found where there is a change that, if known when the original order was made, would likely have resulted in different terms of the order made.
The court was satisfied in this case that the change, namely the severance package, was legitimate, and here is why:
[35] The claimant argued that this was voluntary, because he chose to take a severance package offered. I do not agree. I find the respondent’s decision to accept the severance package was a reasonable choice in the circumstances. The respondent is an older employee and feared he would be laid off, with less remuneration, if he did not accept the severance package offered. Thousands of other CISCO employees were also laid off. He is now in his 50s, faced with the prospect of retraining and seeking alternative employment.
Our Spousal Support Variation Termination Lawyers know that if they had not found that, nothing would have changed.
The Respondent, having cleared that hurdle, went further, sought to argue that the Claimant, after 11 years after they separated, should now be self-sufficient. However, the court noted caselaw that:
[25] The Supreme Court of Canada has been explicit that there is no general duty of self-sufficiency. Rather, self-sufficiency is one of many objectives of spousal support that should guide a court’s decision: Leskun v. Leskun, 2006 SCC 25 at paras. 25–27; L.M.P. v. L.S., at para. 59. Further guidance comes from the Spousal Support Advisory Guidelines [SSAG]. Per SSAG, requests to end spousal support because the recipient has become “self-sufficient” should be understood as “questions about whether the initial basis for entitlement continues to exist. Self-sufficiency can be interpreted differently depending on the initial basis of entitlement”: Department of Justice Family, Children and Youth Section, Spousal Support Advisory Guidelines: The Revised User’s Guide, by Carol Rogerson & Rollie Thompson (Ottawa: Department of Justice Canada, 2016) at 11.
Calgary Spousal Support Variation Termination Lawyers 1 877 602 9900
Consequently, the court considered the grounds for spousal support in the first place, to see whether it should continue. In this case, they noted that, “most significant economic consequence … usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation …” (para 29). That was the case here – the intent of the spousal support paid, was at least in part “compensatory”, or to compensate the Claimant for her years of raising the children, and lost career potential because of it. So:
[32] Where the court is satisfied that there is an obligation on the recipient spouse to move toward self-sufficiency, but acknowledges the compensatory aspects of the original spousal support award, steps such as imputing income to the recipient spouse, or a time-limited or step-down approach in spousal support payments, may be tools used to allow for a transition to self-sufficiency.
Applying that framework, the court decided:
[42] I am also satisfied that the claimant has the ability and obligation to move toward self-sufficiency. Additionally, that the value of family assets was equalized upon separation. In the circumstances, spousal support should be set at the low end of the Guidelines range.
As for how long support should last generally, the court stated:
[45] A general rule is that spousal support may be ordered for 0.5 years to one year for each year of a relationship. When a relationship reaches 20 years the presumption shifts to spousal support being paid for an indefinite period. Indefinite does not mean forever, however.
In this case the court decided that:
[47]Here, the fact that the spousal support was partially compensatory leans towards a longer period for spousal support to be paid. The fact that the equalization of assets left both parties in relatively equal positions on divorce leans toward a shorter period. The fact that the claimant has not become self-sufficient, despite her training and education, is a factor as well.
[48]In the overall circumstances, I am satisfied that spousal support should end at a definite date of 18 years, as set out below. Further, that spousal support payable by the respondent should be subject to a step-down reduction to reflect the reduced income of the respondent, and the need to encourage self-sufficiency on the part of the claimant.
What Happened?
As a result, spousal support in this case was reduced as follows:
- from $7,000 per month to $3,200 per month for 8 months (given the income from the severance package of the Respondent, and the income of the Claimant imputed at $45,000 per year, and the SSAG calculations),
- then to $1,520 per month for 4 years after that, and
- $760 per month for 3 years after that, following which it would terminate.
Essentially, instead of the 3 years and $1,500 per month that the Respondent had sought, it was a step-down over a period of nearly 8 years. As well, while spousal support was stepped-down and eventually terminated, it is worth noting that the marriage itself was 20 years, and that spousal support was to continue until 18 years afterward separation.
For a general summary on the law of spousal support variation read this.
As you can, see, there are a number of factors that affect any Spousal Support Variation or Termination application. Any of these factors might change the amount and duration of spousal support, and when it might end, in a given case. Our top Spousal Support Variation Termination Lawyers at MacLean Law, in all of our offices in Vancouver, Surrey, Kelowna, Fort St. John, and Calgary remain open by telephone, video and email to advise you regarding your case of Spousal Support Variation or Termination. Click here to set up a meeting with one of our top Spousal Support Variation Termination Lawyers. Remember delay only hurts your case. Don’t leave thousands on the table.
