I remember years ago looking at a website for an American family law firm and perusing their “rules” for family law litigation. The one that most stuck in my mind was their admonition that “nice guys in family law cases finish last”. At the time I cynically thought they were correct, and I still do.
An example of this truism is the recent British Columbia Supreme Court case of T.N. v. B.N. 2018 BCSC 201 where the parties were married for 22 years. At the date of separation the parties’ two children remained in the primary care of their mother who was a registered nurse who earned $28,000 per year working part-time. Prior to the birth of her children she held prominent high-paying nursing positions. Her husband was an academic with a Ph.D degree who earned $126,000 per annum. In 2007 the parties signed a separation agreement that resolved all issues including parenting and financial issues.
Their agreement was completed just before the final Spousal Support Advisory Guidelines (SSAG) were published, but both parties were aware of them and recognized the likely amount that would flow in spousal support to Ms. N. as a result of her and her husband’s respective incomes.
The agreement stipulated that based on their current guideline incomes, Ms. N could expect to receive between $1,728.00 and $2,378.00 per month. However, Mr. N. agreed to pay his wife $3,400.00 per month for at least one year after the date of the agreement in order to ensure that Ms. N. could remain in the family home with the children. The agreement also provided that:
“The parties both acknowledge the need to adjust, within a reasonable period of time, to a level of Spousal Support that fits within national guidelines and standard customs and practices in British Columbia and Canada.”
As it turned out, Mr. N. paid this monthly sum until 2014. Besides paying guideline child support and over-paying spousal support, Ms. N also received more than 50% of the parties’ family property. Mr. N. asserted he paid her an extra $277,000, but during the hearing agreed with Ms. N. that the amount was closer to $139,000, still not a small amount.
While the agreement called for a review of spousal support, for years the parties ignored this clause and life carried on. In the meantime, Ms. N. related the children’s very negative reaction to the parties’ divorce and their escalating deviant behaviour, conduct that limited their mother in her work hours, coupled with an estrangement between the children and their father. Mr. N. deposed that parental alienation had played a part in his lack of relationship with the children, a fact that was denied by his ex-wife.
Naturally Mr. N. argued and expected that his additional financial efforts would be sufficient to support his position that he had fulfilled his legal financial obligations to his former wife.
Unfortunately for Mr. N., his former wife had also suffered from several major health ailments and for several years was unable to work at all, although by the time of the hearing she reported 2016 income of $84,000 and 2017 income of close to $60,000.
The Court determined that Ms. N. had a strong compensatory claim which called for a retroactive support order at the high end of the SSAG range, noting that if the only advantage to Ms. N. was an overpayment of spousal support the court would not decrease the length of ongoing spousal support.
However, the court acknowledged that Ms. N. received more than 50% of the value of the family home, however, the parties had not shared their employment pensions or Canada Pension. The value of these assets was not before the court, but the Court estimated that Mr. N.’s would be far greater based on his work history. The Court thus determined that Ms. N. was still entitled to spousal support albeit at the low end of the SSAG range.
A further interesting judicial observation was the Court’s statement that “one might think that a person earning between $60,000 and $85,000” may give an appearance of self-sufficiency but that would not necessarily be true. An unbiased assessor may disagree that a single woman would not be entirely self-supporting on this income, however, the family law definition of “self-sufficiency” incorporates a “standard of living” test and an unspoken “comparison of incomes between former spouses”.
It is not surprising that Ms. N. was still entitled to spousal support, based on well-known compensatory principles, however, it is very likely that Mr. N. expected that his early generosity would translate to a reduced time period for payment of support. Instead the Court ordered continuing support of $1,967.00 per month for an indefinite period of time and $9,000.00 of retroactive support beyond the contracted overpayment, based on the high range of the SSAG.
Lawdiva aka Georgialee Lang