Joan and Michael Beninger have occupied considerable court time in British Columbia and are notable frequent flyers in British Columbia courts dating back to 2000.
With ten reported cases, including three in the Court of Appeal, they have likely spent a small fortune litigating spousal support, most recently in 2019.
In Beninger v. Beninger 2019 BCSC 366 the court entertained an application by Mr. Beninger who sought to terminate spousal support. His former wife cross-applied for retroactive spousal support based on her position that her ex-husband had not paid sufficient support as his Canada Pension income has not been included in the calculation of his total income.
The Beninger’s were married in 1975, separated in 2000, had a trial in 2003, and were now in their sixties. Mrs. Beninger was a traditional housewife and homemaker, raising four girls. Her ex-husband was a tax lawyer who retired in June 2018, hence his application to be relieved of his support payments.
At the time of separation the parties had limited assets due to business investments that had collapsed and in 2001 Mr. Beninger became a bankrupt. He was also on disability leave from his law practice. He returned to full-time employment in 2006 and remarried a woman with significant inherited assets.
Over the years,
Mr. Beninger’s payment of spousal support ebbed and flowed in varying amounts. At trial he was ordered to pay $6,500.00 a month and child support of $2,000 a month for one dependent child, on income of $312,000 per annum. In 2004 his spousal support payment was reduced to $2,000 a month, but by 2006 his income had again increased, and the British Columbia Court of Appeal ordered him to pay $9,000.00 a month. In 2008 he was ordered to pay $10,000.00 a month, an amount confirmed by the BC Court of Appeal.
Over the years he continued to pay support for his dependent daughter in ever increasing amounts. In a 2010 application Mr. Beninger succeeded in terminating his daughter’s support as she was now in graduate school. During the child support application referred to above, Mrs. Beninger sought to have her former husband’s new wife’s income included in the court’s assessment of income, but the court declined to do so.
In 2011 Mrs. Beninger brought an application to increase spousal support based on the termination of child support payments. The court agreed that this was a material change and ordered Mr. Beninger to pay $12,965.00 monthly retroactive to November 1, 2010. The intent of the order was to ensure that Mrs. Beninger received 45% of her former husband’s net disposable income.
In 2012 the parties consented to reduce spousal support to $10,155.00 per month. In 2014 Madam Justice Fenlon, who had remained seized of the case since 2008, established a formula that provided that each year Mrs. Beninger would be paid 45% of Mr. Beninger’s net disposable income.
Despite the court’s attempt to put an end to annual court hearings, the parties could not agree and in 2013 and 2014 they again appeared before Judge Fenlon. At the time of his application to terminate support he was paying support of $11,202.00 a month.
The evidence showed that at the age of 66, in February 2018, Mr. Beninger advised his law firm that he would retire in October 2018. The firm accepted his retirement but requested that he leave in June 2018. Mr. Beninger testified that his practice had been winding down for several years as his hours and billings decreased, making his practice less financially viable for the firm given the significant overhead. Mr. Beninger had commuted to his work at Bennet Jones in Calgary from Vancouver for twelve years while his second wife remained living in Vancouver.
He also deposed that the commute and general demands of a law practice were more than he could manage at his age, particularly given his health conditions, namely, high blood pressure, high cholesterol, and osteoarthritis. His family doctor had recommended retirement in order to reduce his stress level.
He also reported that shortly after his June 2018 retirement he and his wife had moved to Mexico and were living in a condo purchased for $445,000.00. His retirement income was less than $10,000 per annum in Canada Pension Plan payments. He owned assets valued at $200,000 and a Canada Revenue tax debt of $45,000. He had negotiated a without prejudice reduction in spousal support with Mrs. Beninger and was paying $5,000.00 at the time of the termination hearing.
Mrs. Beninger’s retirement income amounted to approximately $21,000 per annum and she owned assets valued at $345,000 and had no debt.
The chambers judge determined that Mr. Beninger’s retirement was entirely reasonable given his age, of 67 at the time of the hearing, the decline in his practice, and ongoing health issues. She also remarked that Mrs. Beninger acknowledged, as early as 2011, that “time was running out”.
Finding a material change led the court to move to the next step of the analysis as to whether spousal support ought to be paid post-retirement. She reviewed the principles of compensatory support and found that after 20 years of support amounting to $1.8 million dollars, Mrs. Beninger had been fully compensated for the disadvantages arising from the marriage and the marriage breakdown. However, on the basis of need, she accepted that Mrs. Beninger would face hardship. However, anything more than a nominal payment would find the second Mrs. Beninger responsible for her husband’s support payments. She said:
“ I am not aware of any basis in principle or precedent to consider the separate financial means of a payor’s new spouse in establishing the quantum of non-compensatory support.”
Ultimately, the court balanced the equities between the parties and ordered Mr. Beninger to pay transitional spousal support of $2,500.00 a month for a period of six months, to terminate thereafter. The application that Mr. Beninger pay retroactive support based on CPP income was dismissed based on a double dipping argument.
Based on the Beninger’s track record, it would not surprise me if this decision is appealed by one of the parties, but that remains to be seen.
The upshot is that after a 25-year marriage and 20 years of spousal support, this high-income earning spouse shared his income with his ex-wife and child in a fair manner. Both parties suffered from the fact there were no assets to divide at the end of their marriage. I expect the family debt was erased with Mr. Beninger’s bankruptcy in 2001.
The parties separated when Mrs. Beninger was in her late 40’s when she might have obtained some kind of employment, but earlier decisions indicate that after several failed attempts she was not employed after the demise of her marriage.
From her current asset disclosure it appeared she had not tucked away any monies from the considerable amount of support she received over the years. Mr. Beninger will enjoy the benefit of a financially stable partner, while his ex-wife will unfortunately join the ranks of elderly women who live near the poverty line, which BC government data indicates is less than $20,000 per annum for a single person.