Earlier this year, the Supreme Court of Canada denied leave to appeal the British Columbia Court of Appeal (the “BCCA”) decision K.D. v. N.D., 2014 BCCA 70, which upheld an order made in Chambers varying but not cancelling spousal support in a situation involving young children and a new relationship.
The BCCA decision clarified some fundamental principles of spousal support in addressing the five arguments the husband raised in his attempt to have spousal support cancelled:
1. No End Date: Although the length of a marriage is a factor in the determination of spousal support and a “time-limited” or “clean-break” model may be appropriate in certain circumstances, it will not generally be appropriate to cancel or limit the period of support in circumstances when there are young dependent children.
2. Spousal Support is Not an Automatic Right: Entitlement is a principle of spousal support and the Judge correctly considered the specific circumstances of the wife, the children’s ages and the efforts made to become self-sufficient and determined that she was entitled to spousal support in the circumstances.
3. Self-Sufficiency is an Objective of the Divorce Act: There is an obligation to strive for self-sufficiency to the extent that a spouse applying for spousal support is able to do so. This obligation will be considered in the circumstances. In this case, the BCCA found that the Judge determined that the recipient wife was making efforts to become self-sufficient and his decision to impute income to her put her on notice that she had to continue to move towards self-sufficiency.
4. Costs of the Recipient Spouse’s Choices: Whether a spouse is making a conscious choice not to be self-supporting is a question of fact and in this specific case, this contention was not supported by evidence.
5. Spousal Support Advisory Guidelines (“SSAG”): The husband argued on appeal that the Judge’s use of gross income to determine the amount of spousal support was incorrect. The BCCA reviewed the SSAG and the evidence put forward in the specific case. The BCCA stated that gross income is a starting point for spousal support and in this case there was no error by the Judge because he used the evidence both parties put before him and clarified that he was addressing Line 150 income. Both parties had self-represented and provided the Judge with calculations from MySupportCalculator.ca. The court referred to the notes that accompanied the MySupportCalculator.ca calculations that specifically stated its calculations rely upon gross employment income only and advises parties’ to see a lawyer if their income comes from other sources such as business, self-employment, dividend and other sources as support calculations are then more complex and adjustments should be made. The husband’s evidence could not be changed upon appeal. Further, with respect to duration, the BCCA confirmed that duration under the SSAG will be different based on whether or not the parties’ have children. Where there are young dependent children, indefinite support is the approach a Judge ought to take initially.
In summary, this BCCA decision has clarified that spousal support orders are fact specific and the unique circumstances of each couple will be determinative. Further, the evidence put forward is essential as are the calculation methods used. If you are seeking spousal support or being asked to pay spousal support, it is highly advised that you discuss your circumstances with a lawyer.