Grey Spousal Support: Will You Still Need Me, Will You Still Feed Me, When I’m 64?-Part 1

Part 1

I naively thought that one day a discussion of spousal support would begin without the preliminary sentiment that spousal support is one of the most difficult areas of family law in Canada. That’s what I wrote in 1990 in my Canadian Bar Review article entitled “Pelech: Variations on a Theme”; in 1995 in “Spousal Support After Moge” published by the Continuing Legal Education Society; and in 2011 in The Huffington Post: “Family Law’s Crapshoot: Will Canada Reform Spousal Support Laws?”

And here I go again… the promised consistency and certainty that would allegedly flow from the Spousal Support Advisory Guidelines (“SSAG”) has proven illusory. The stark reality is pre-SSAG one could at least rely on precedent, similar cases with similar facts, but today, not so much, and don’t get me going on the discrepancy in the use and abuse of the SSAG across Canada.

Sadly, similarly situated spouses across Canada face support awards and principles that bear little resemblance to spousal support orders made in British Columbia, the jurisdiction that has most avidly welcomed, even embraced the SSAG. B.C. judges and SSAG go together like “Love and Marriage” with all due respect to the great Frank Sinatra and the fine judges of our Court of Appeal.

The lack of predictability in spousal support awards, including variation and termination of support orders, has increasing importance as Canada faces a “greying” population and long term marriages are crumbling at startling rates, owing in part to the “boomers” refusal to imitate the more languid lifestyles of previous generations. It is universally recognized that many Canadians are healthier, and with advances in medicine, life now has more “cherries in the bowl”. Statistics Canada reports that by 2036 there will be only 2.5 workers in Canada for every retired senior. That’s a lot of old people!

Spousal support for spouses 50 or older introduces considerations and consequences that require a nuanced approach to the determination of quantum and duration, reviews, variation, and termination. In this paper I will review the most recent spousal support cases from the British Columbia Court of Appeal to provide a glimpse of current trends and issues.

I believe this review will illustrate the impact of grey divorce on Canada’s divorce industry and the future prospects for family law lawyers.

1. JENDRUCK v. JENDRUCK 2014 BCCA 320

The Jendrucks were married for 34 years, were in their late 50’s, and had two independent children. Mrs. Jendruck was not employed at the time of trial but had previously worked at a bank for 20 years and operated a daycare from her home. Mr. Jendruck’s income was $80,000 per annum.

Mr. Jendruck argued his wife had made no effort to become economically independent and that income should be imputed to her. The trial judge found that Mrs. Jendruck’s lack of self- sufficiency was Mr. Jendruck’s fault as he had maligned his wife’s daycare operation, leading to her emotional issues. The trial judge expressly noted that Mrs. Jendruck could not be expected to work for minimum wage at a job that would provide no satisfaction to her.

Support was ordered at the highest range of the SSAG, an amount of $3,849.00 per month, to be reviewed in 2020 when the husband would attain 65 years of age.

The husband appealed citing the trial judge’s error in attributing his wife’s inability to continue with her daycare operations and emotional upset to him. He also argued that the notion that his wife was exempt from seeking outside employment,
albeit at minimum wage, was wrong in law.

Madam Justice Saunders agreed that the trial judge had erred on the basis of the following factors:

a) Neither the pleadings nor the trial evidence supported the trial judge’s theory that the wife was unable to restart her daycare;

b) There was no evidence, other than the wife’s; that her emotional state would prevent her from the childcare work she aspired to.

c) Mr. Jendruck’s “unenthusiastic” comments about his wife’s daycare operation did not “bear upon her ambition once he left the family home”.

d) Mrs. Jendruck had argued she needed to retain the family home in order to operate her day care, a position the trial judge acceded to.

e) The court cited Van Gool v. Van Gool (1998) 44 RFL 4th 314, for the proposition that “this Court has never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because they could not obtain interesting or highly-paid work”, declaring it to be applicable to a spouse’s obligation to contribute to her own support insofar as is practicable, pursuant to the Divorce Act.

The Appeal Court imputed income of $1,000 a month to Mrs. Jendruck; found that the review provision upon Mr. Jendruck’s 65th birthday was not unreasonable and left it in place; but also ordered an earlier review to take into account the uncertainty of Mrs. Jendruck’s earned income. This review was to take place in six months and focus on Mr. Jendruck’s income, Mrs. Jendruck’s income, and her efforts to enhance her income.

IMPORTANT “TAKE-AWAYS” FROM JENDRUCK

a) The wife’s pleadings did not include the assertion she was incapable of restarting a day care in her home. With the new “check-box” pleadings it is easy to skip over important facts that are central to a party’s case. Counsel often forgets it is the pleadings that govern the issues and argument in a case.

b) The Court found that the wife’s evidence of emotional upset and an inability to work was insufficient to make a finding of fact in that regard. When physical or emotional incapacity is relied on to support an award of spousal support, there must be independent third-party evidence such as medical records or a medical report.

c) Despite a 34-year marriage, and a 58-year old dependent spouse, with no more than a grade twelve education, but previous work experience, counsel can no longer suggest that it is inappropriate or degrading for their older female clients to work at a menial job for minimum wage.

Lawdiva aka Georgialee Lang