Grey Divorce: Spousal Support for Husbands?

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Is it more difficult for a husband to obtain a spousal support order? Mr. Lee would likely say that it is….(Lee v. Lee, 2014 BCCA 383)

The Lee’s were married for 20 years with no children and were ages 56 and 49 at the time of the appeal. Mr. Lee spent ten-years as a “car man” with Canadian National Railways and part-time as a doorman at a bar. Mrs. Lee spent these years earning a bachelor and master’s degree at her own expense and eventually became a high school principal earning $120,000 per annum. Mr. Lee’s CNR income topped out at $48,000, but came to an end as a result of a car accident that “made it impossible for him to wear a hard hat”. He then began to work part-time as a personal trainer earning $10,000 per year. However, he never filed tax returns, citing his nominal income as the reason.

Mr. Lee received an ICBC settlement of $320,000 that he said was used for family expenses, including a payment of $240,000 against the mortgage on their first family home. The evidence showed that the parties lived well beyond their means and repeatedly remortgaged their home to pay down credit card debt and overdraft lines of credit.

Mr. Lee suddenly told his wife that the marriage was finished and moved in with a policewoman who earned a base salary of between $75,000 and $90,000, before overtime. While his new partner’s income records were subpoenaed she did not produce them.

Mr. Lee claimed spousal support pointing to the significant disparity in income between he and his wife. He agreed to an imputation of income in the amount of $40,000 per annum and sought monthly support of $2,100.00 for seven and one-half years when he would receive a CNR pension of $1,490.00 per month.

Mr. Lee received a modest reapportionment of the net family assets of $186,485.00 and a Part 6 division of their respective pensions. The Court discounted his argument that his contribution to the pay down of the mortgage supported a larger reapportionment. The judge did not accept that his contribution was greater than his wife’s, given her high income, and noted that much of his settlement was used to purchase a Subaru vehicle, a Corvette including $20,000 in modifications, another Subaru, and a Harley-Davidson motorcycle, all for himself.

The trial judge held that Mr. Lee was not entitled to spousal support in addition to 54% of the net family assets, finding there was no basis for compensatory or needs-based support. Mr. Lee had received about $19,000 in voluntary interim support that he was ordered to repay to his wife.

The husband’s spousal support appeal was essentially about his entitlement to the standard of living that Mrs. Lee would continue to enjoy post-divorce.

Madam Justice Newbury remarked that Mr. Lee had not forgone any educational or career opportunities or made any other “sacrifice”. He also did not make a substantially greater contribution to the family than did Mrs. Lee.

She identified the “question of principle” raised by Mr. Lee’s appeal succinctly:

“Whether it can be said that by virtue only of the disparity between his and Mrs. Lee’s income going forward, he can be said either to have suffered a disadvantage by reason of breakdown of the marriage, or to have a claim to spousal support on the basis of need.”

Madam Justice Newbury acknowledged the generalized comments of Madam Justice L’Heureux-Dube in Moge v. Moge that suggested the question before her could be answered in the affirmative, however, she also averted to the oft-cited proposition that “marriage per se does not automatically entitle a spouse to support.”

The Court cited extensive portions of Professor Carol Rogerson’s article from 2001 titled “Spousal Support Post-Bracklow” 19 CFLQ 185, including where Ms. Rogerson referred to a quote from the Ontario Supreme Court in Keller v. Black (2000) 182 DLR 4th 690:

“It seems that Bracklow has taken us to the point where any significant reduction in the standard of living of a spouse, resulting from marriage breakdown will warrant a support order—with the quantum and/or duration of the support being used to tweak the order so as to achieve justice in each case.”

Madam Justice Newbury agreed that the Court’s comments in Keller v. Black aptly described the approach adopted in British Columbia as well, however, she found there was no precedent for an award of spousal support based “solely on the disparity of incomes, or even solely on the basis of the non-compensatory model” referring to several cases including Chutter v. Chutter 2008 BCCA 507; Hodgkinson v. Hodgkinson 2006 BCCA 158; and Fisher v. Fisher 2008 ONCA 11.

She also noted that in Farrar v. Farrar 2003 63 OR 3d 141 the trial judge ordered Mrs. Farrar to pay her spouse the sum of $12,000.00 solely on the basis he was in need and she had the ability to pay, an order overturned by the Ontario Court of Appeal stating that “the differential in income alone did not provide a basis for awarding spousal support.”

Equalization of income was also considered in Griffiths v. Griffiths 2011 ABCA 359 where the appeal court said:

“Equalization of incomes, or even of lifestyles, is not a basis alone for non-compensatory spousal support. Still less is equalization of incomes each year. Loss of access to the fruits of the respondent’s future labour is not a recognized underpinning to entitlement to spousal support, absent other considerations.”

Most notably, the Court found that if Mr. Lee had not formed a new relationship the current case law in British Columbia would have permitted an award of spousal support, given 20 years of marriage, but:

“whether it would have been a material error in law or a wrong exercise of discretion to refuse support in such circumstances is another matter…To rule as a matter of law that Mr. Lee should be compensated indefinitely for the “loss” of the ability to share in Mrs. Lee’s income and lifestyle would, taken to its logical conclusion, mean that support must be ordered on one model or the other in virtually every case that comes before the court.”

The majority held that the only appropriate change to the trial judgment should be the elimination of Mr. Lee’s obligation to repay his wife for the interim support. Dissenting on this point alone, Madam Justice Bennett held that the repayment order was sound in law based on the economic effect of Mr. Lee’s new relationship with a partner who owned her own home and earned a substantial income.

Mrs. Lee was awarded 90% of her costs.

IMPORTANT ‘TAKE-AWAYS” FROM LEE

After reading Lee v. Lee I got the sense that the trial judge did not like or respect Mr. Lee. The trial judge referred to Mr. Lee’s admission that he had been selling steroids and growth hormones illegally; earning $200.00 a month, a modest sum that was contradicted by third party evidence. The Court also acknowledged that money Mr. Lee had borrowed or assets acquired remained undocumented or incompletely explained. The Court also found that the standard of living enjoyed by the Lees was illusory as it was accommodated with borrowed money.

The trial judge expressed skepticism that Mr. Lee’s employment choices were limited to part-time personal training, referring to a video recording taken surreptitiously by a private investigator that filmed Mr. Lee at his gym lifting heavy weights with considerable agility. There was also expert evidence that a full-time trainer with only a high school education could earn up to $60,000 a year.

Mr. Lee’s assertion that his financial contribution to the marriage exceeded his wife’s received short shrift with the Court of Appeal emphasizing that it was neither desirable or necessary to carry out an accounting of “who paid what” during the marriage.

Undoubtedly gender played a role in the court’s ultimate conclusion. Madam Justice Newbury referred to “transitional support” allowing that:
“Such awards have regularly been made in favour of women, but rarely in favour of men, perhaps reflecting that, as Rogerson suggests, “Non-compensatory support is significantly structured by social norms of what is fair and just. The economic dependency of husbands on wives is not reinforced and naturalized by strong cultural norms, as is the dependency of wives on husbands…”

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Divorce Drives Litigant into Depression and Bankruptcy

DSC00275_1You may have heard of the “good divorce”, a concept explored by Psychology Today in 2009 where they suggested that “it is possible if you know how to do it”. Unfortunately, as a divorce lawyer I rarely see the good ones, only the tragically destructive ones.

In worst case scenarios, divorce can be the trigger for personal bankruptcy as it was for Miroslaw Kuczera from Ontario. (Kuczera (Re), 2018 ONCA 322 CanLII)

In an Ontario Court of Appeal decision we read that Mr. Kuczera was a happy family man with two children, employed as an electrician, until his marriage ended in 2007, leading to an acrimonious divorce that included allegations that he was an abusive spouse.

As is typical in high conflict divorces, he had no access to his property and when his legal fees overwhelmed his financial resources he took to using credit cards and borrowed $16,000 from his brother. The loan was to be paid back in 2009 failing which a property owned by Mr. Kuczera in Poland would be forfeited to his brother.

By May 2009 bankruptcy was inevitable and he retained a bankruptcy trustee, made the required monthly payments and was discharged from bankruptcy in October 2010.

Meanwhile the family law litigation continued unabated and his discharge was revoked when the bankruptcy trustee alleged that he had not disclosed the Poland property. He then made a consumer proposal to escape the bankruptcy proceedings which required him to pay $66,0000 over 5 years.

By this time his mental health sadly deteriorated with the combination of soul-destroying family litigation and the exhausting bankruptcy proceedings. His psychiatrist diagnosed him as clinically depressed and suffering from “Dissociative Identity Disorder”.

In January 2012 the family home issue was finally resolved and he received $72,000, but when asked where the money went he had little to say, except that his teenage daughter, who lived with him, was a drug addict, and that he purchased expensive Chinese medicines for his ill son. He said that he always carried cash and that quite likely the children had helped themselves as well. His mental and emotional state left him unable to cope.

The bankruptcy registrar refused to grant an immediate discharge to Mr. Kuczera, delaying it by six months and ordering that he pay the sum of $61,000, writing:

“I appreciate that the bankrupt will find an order of payment of this magnitude difficult in light of the circumstances present at the date of the hearing. However, it is my view that this situation could have been avoided had the bankrupt acted reasonably with his creditors. He clearly did not wish to pay his creditors under the proposal when he received significant funds in 2012. His current situation is his own doing.”

Mr. Kuczera’s appeal from the registrar was dismissed with the court refusing to admit updated psychiatric reports. But then the case came to the Ontario Court of Appeal, who took an entirely different view of his situation.

To begin, the highest court admitted the psychiatric report and affirmed that even though it was only filed after the registrar’s initial hearing and that it came from the bankrupt’s personal therapist, it met the legal test for admission, contrary to the registrar and first appeal court’s views.

While the missing funds were problematic, the Ontario Court of Appeal accepted that Mr. Kuczera’s mental condition affected both his “thinking and his actions”. The Court also found there was no evidence that he had benefitted personally from the sale proceeds. The finding that he had not disclosed the property in Poland was found to be erroneous. The Court said:

“The condition imposed by the Registrar that the appellant pay $61,000 as a condition of his discharge, given his personal history, was more than just “difficult” for the appellant. It was crushing.It does not reflect the rehabilitative objective of the”…(bankruptcy legislation).

While not all family litigants suffer from the dire consequences recounted here, there can be no doubt that family litigation, particularly in high conflict cases and proceedings that carry on for many years after the initial separation, are the cause of mental and physical impairment, financial devastation, and even suicide.

There is a better way and that is to move family law cases out of the courtroom and into Family Law Centres with dedicated judges, lawyers, counsellors, financial experts and other professionals, with a focus on negotiation, mediation and arbitration. Will any government dedicate the funds to try this better way? Don’t hold your breath!

Lawdiva aka Georgialee Lang

The Public Has the Right to Know: JP v. British Columbia

GeorgiaLeeLang009In the tradition of open courts and transparency, the BC Court of Appeal has ordered that affidavits, written submissions, and other material filed in the Court be released to the media, in this case CKNW and the Vancouver Sun, a decision I applaud.

The case of JP v. British Columbia has occupied many pages of local newspapers and a multitude of radio and TV reports. It is, of course, the case concerning the groundbreaking decision last summer after a 147 day trial, when Mr. Justice Paul Walker of the British Columbia Supreme Court found that B.C.’s child protection authorities had negligently permitted a father to sexually abuse his children while the youngsters were in the custody of the Ministry. The Court found that the government’s failure to protect the children was “egregious, negligent, and a breach of duty” and government social workers showed a “reckless disregard to their obligation to protect children.”

The evidence before Mr. Justice Walker included expert evidence from Californian Dr. Claire Reeves who had been an expert witness at the 90 day family law trial that preceded the action against the Ministry by several years. Dr. Reeves’ expert opinion played a significant role in the original finding that this father had sexually abused his children.

The legal profession was shocked when the Court of Appeal reviewed the evidence and determined that the so-called expert had defrauded the court. Their awe was not a criticism of the high court’s findings, but that the lower court has been so taken in by Dr. Reeves and the utter disregard for proper procedure.

Last year in a 411 paragraph decision, the Court of Appeal (JP v. British Columbia 2017 BCCA 308) held that Dr. Reeves’ fraud impacted the integrity of the entire judicial process, leading to a gross miscarriage of justice. The trial findings that the father was guilty of sexual abuse of his children were thrown out and a new trial ordered. The scathing denouncement of BC’s child protection authorities was also dismissed, the appeal court finding that the alleged misfeasance was the product of procedural unfairness.

With the Court of Appeal’s order made today, more details of this extraordinary case will be forthcoming. Last week, the Supreme Court of Canada refused to hear JP’s appeal of the BC Court of Appeal decision. It is her lawyer that introduced Dr. Reeve’s evidence into the trial process and who has been soundly criticized in the media for the debacle that occurred. JP was the only participant in today’s appeal that resisted the principle of open access to the courts….not surprising!

Lawdiva aka Georgialee Lang

It’s a Whole New Ball Game with Social Media Evidence in Family Law Cases

BarristerSocial media has changed the way the world communicates and connects on a personal level. While many lawyers have resisted the change, it is no longer possible to deny its impact. Your clients are using social media and so should you. Its relevance to family law lawyers takes several forms, none more important than as evidence in court.

This comment will consider the admissibility of online material in court proceedings by reviewing several recent Ontario and British Columbia cases. You will see that social media evidence has made it a whole new ball game for family law litigators.

Family law cases are infamous for “he said/she said” narratives, and in many cases, social media can shed light on the credibility of a litigant’s evidence. In Plese v. Herjavec 2015 ONSC 7572, Dragon’s Den star Robert Herjavec was faced with argument that his net worth was well beyond what he admitted. His wife tendered three exhibits: a Wikipedia excerpt that reported his net worth at $200 million; other social media reports that his net worth was $160 million, and a “getnetworth.net” report in the amount of $100 million. Mr. Herjavec had also written a book where he wrote that he sold his company for $100 million.

He challenged the social media evidence explaining that he had no control over what others published and that most ofit was mere “hype”.

For her part, his wife said that the evidence proferred was not intended to prove the value of his business interests, but to show that his evidence of net worth should be viewed sceptically. She also referenced a speech given by her husband in 2015 where he said that “in three years we can quadruple the value of our business” and increase revenue from $150 million to $250 million.

Mr. Herjavec urged the court to strike the evidence from his wife’s affidavit. The Court declined saying:

“Indeed, the Applicant does not say that she believes the evidence to be true. She does not offer it as evidence of the income of the Respondent or of the value of the business.Rather, she offers it to undermine the credibility of the Respondent and argues that the court ought to conclude that there is serious reason to doubt the accuracy of the Respondent’s evidence and assertions.”

However, the Court also said that it had not relied on the social media evidence in respect of its analysis of Mr.Herjavec’s income.

In Caine v. Ferguson 2012 ONCJ 129 a father, who was a musician, argued that his income was too low for an award of child support to be made against him.

His former wife’s counsel submitted he could be earning $35,000 per annum, and in support of her submission sought to introduce two internet articles from American websites: Payscale andMusicianWages.com.

The chambers judge remarked that in Rodgrigues v. De Sousa 2008 ONCJ 807 he had permitted reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry, as the documents came directly from the provincial and federal governments and had some indicia of reliability.

However, he refused to admit the documents, finding they did not come close to achieving threshold reliability: there was no indication the sources were reputable, no foundation was provided as to the qualifications of the authors of the documents; they were dated; and from the United States. The Court was not satisfied they reflected what a freelance musician could earn in Toronto.

In Balayo v. Meadows 2013 ONSC 5321, a mother made serious and inflammatory allegations against her husband, stating that he was physically abusive to her and verbally abusive to her and their child, who was traumatized by his behaviour. She alleged he was a drug user, drank excessively, and gambled away their assets. The allegations were vociferously denied by the husband who introduced into evidence text messages between the parties that showed cordiality, respect, and cooperation, and evidenced plans to spend time together with their child. The Court noted that a determination of where the truth lay would be facilitated by oral testimony and cross-examination at trial.

The father had not seen his daughter for eight months. In light of the length of time there had been no contact between father and child, the Court ordered short-term supervised access to facilitate a gradual re-introduction of the child to her father, noting that the order should not be considered an acceptance of the mother’s allegations of abusive or harmful behaviour.

In Teuissenv. Hulstra 2017 BCSC 2365 the British Columbia Supreme Court refused the defendant’s application to admit a binder of 277 Facebook posts covering a two-year period in a motor vehicle accident case.

The defendant hoped to use the posts to prove that the plaintiff’s alleged physical impairment and loss of enjoyment of life was exaggerated as evidenced by the activities shown in the Facebook entries. The plaintiff did not object to the defendant entering the posts individually by showing them to a witness and asking relevant questions, but questioned the efficacy of entering a binder of posts some of which had little relevance to the defendant’s position.

Relying on Samuel v. Chryler Credit Canada Ltd. 2007 BCCA 431 the court considered the impractical nature of admitting documents “en masse” and eschewed the practice of entering a book of documents as a whole. The court reasoned that such a process would unduly lengthen already unmanageable trials.

The court held:

” I conclude, therefore, that the proper approach is for the defendant to seek the entry of the pertinent post or picture after properly identifying it, establishing its relevance, and questioning the author on that matter. At that point, the parties can agree or the court will determine whether it should be properly marked as an evidentiary exhibit in this matter.”

To properly submit a book of documents “en masse”, counsel will need to have opposing counsel review the book and agree that each document is authentic and admissible. This exercise will ensure that both counsel have put their mind to each specific document, prior to the trial commencing, thus avoiding the dilemma of hordes of irrelevant material being thrust upon the court.

So long as the usual evidentiary rules are adhered to, social media evidence is no different than other forms of evidence in court. The hallmarks remain relevance and reliability.

This is Why We Have a Court of Appeal

GeorgiaLeeLang016People make mistakes and judges are people too…In Wang v. Sigouin 2017 BCCA 372 the parties married in 1993 and separated in 2015. The couple lived with their two children in Shanghai but had real estate in Vancouver, including a two bedroom apartment with a tenant and a one-bedroom unit that was available for family use when visiting Vancouver.

Despite the fact that litigation had already been commenced by the husband in China, the wife brought an application to the court in British Columbia asserting that she lived in British Columbia with her high-school-age daughter and sought an order for exclusive occupation of the Vancouver two-bedroom apartment.

The husband responded to the application arguing that the BC court did not have jurisdiction over the parties because neither of them ever resided in BC and also challenged the wife’s application for occupation of the tenanted apartment as it was not the parties’ “ordinary place of residence” as required by the law.

The British Columbia Court of Appeal determined that the chambers judge had been mislead and that the evidence before him confirmed that neither parent nor children resided in BC.

The evidence revealed that the parties’ daughter attended school in Shanghai. Because of the inaccurate submissions he received, the chambers judge ordered exclusive occupation of the apartment to the wife and pending the eviction of the tenant, the husband was ordered to pay the wife $400 per night so that she could pay for hotel accommodation in Vancouver, until the tenant’s departure.

The judge failed to consider the husband’s challenge to the court’s jurisdiction likely because he was told that the wife and daughter lived in BC and owned real estate in BC. Without assessing the matter the court simply agreed with the wife’s counsel that the court had jurisdiction.

Ultimately, the appeal court reversed all of the judge’s orders and sent the case back to the court to determine the issues in accordance with the law and the correct facts.

An unfortunate case where additional legal fees were incurred by the parties to correct an injustice, however, it is the responsibility of counsel to ensure that accurate information and correct legal principles are before the court.

Lawdiva aka Georgialee Lang

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

Barrister

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

Nice Guys Finish Last

GeorgiaLeeLang025I 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