In my view the heaviest family litigation traffic amongst aging boomers will be in reviews, variations, and applications to terminate spousal support, based on section 17 of the Divorce Act. The Hepburn case is illustrative of this prediction. (Hepburn v. Hepburn 2013 BCCA 383)
Dr. Hepburn, age 55, was a family physician that had a modest sideline writing a syndicated medical column for local newspapers from which he earned about $30,000.00 per annum. After 26 years of marriage the Hepburn’s separated in 2006. Mrs. Hepburn, age 65, had raised their four children and occasionally performed bookkeeping and administrative duties for her husband’s medical practice.
The parties negotiated a settlement, agreeing that Dr. Hepburn’s income for the purpose of a Spousal Support Advisory Guideline calculation was $220,000 while his wife’s was nil. He agreed to pay his wife $8,000.00 a month indefinitely with no review.
In 2008 Dr. Hepburn decided to amp up his media career and spend less time seeing patients and more time developing a media platform. Eventually he signed a contract with the Oprah Winfrey Network to produce a television show called Wisequacks. He would be paid a modest $1,250.00 per episode. As a minority owner of a group of medical clinics, in 2009 he was asked to transfer his practice to another clinic location, and he agreed.
His pursuit of a media career was not lucrative and entailed many hours of networking and creating opportunities for potential success. In 2011 he advised his ex-wife that because of a downturn in his income he would reduce her monthly support from $8,000.00 a month to $5,000.00 a month.
At a variation hearing in 2012 he deposed his annual income was only $145,000, while his former wife’s income had grown from nil to $12,000.00 a year, on account of rental income and Canada Pension Plan benefits. Dr. Hepburn argued that his change of workplace resulted in fewer patients and less income. He also suggested that the media industry was changing rapidly and that other media forms had displaced a weekly newspaper column. He contended that income should be imputed to his ex-wife because she had not taken reasonable steps to become self-sufficient.
The chambers judge dismissed his variation application opining he had not met the onus of proving a material change in circumstances. The judge found that the change in the location of his workplace was not mandatory; the fact Dr. Hepburn now spent almost fifty per cent of his time on media activities, with no commensurate financial benefit, was also a personal choice that should not give rise to a change in his spousal support obligations.
On appeal Madam Justice Neilson agreed with the chambers judge that Dr. Hepburn’s relocation in his workplace was voluntary and that he ought reasonably to have known that the change would translate to a lower income. She also found that Dr. Hepburn had failed to show that his media activities had a reasonable prospect of financial success, a factor that could have justified the hours he devoted to it.
However, the appeal court allowed the appeal recognizing that the decrease in his media income and the increase in Mrs. Hepburn’s income post-separation, albeit moderate, were nevertheless material. Dr. Hepburn’s income was found to be $200,000.00, a reduction of $20,000.000 per annum and Mrs. Hepburn’s $12,000.00 per annum, an increase from nil income.
Dr. Hepburn was ordered to pay $6,850.00 in spousal support.
IMPORTANT “TAKE-AWAYS” FROM HEPBURN
1. Although far from startling, the fact remains there is a very heavy onus on a variation applicant to prove a material change in circumstance that is not characterized as voluntary or self-serving. Any change in a payor’s income that comes as a matter of choice is fatal to a successful variation application.
2. Where an applicant has a high-paying, long-term professional position, his or her desire to “stop and smell the roses” is permitted, but not at the expense of a reduction in a dependent spouse’s spousal support.
3. There is no doubt that Mrs. Hepburn’s age was an important factor although it was not specifically mentioned by either court. Dr. Hepburn’s suggestion that his former wife had not taken serious steps to become self-sufficient garnered little comment from the courts.
Lawdiva aka Georgialee Lang