Category: Spousal Support

The Succession Law Reform Act has recently been interpreted to possibly allow for the addition of non-parties to a dependant’s relief claim. In the case of Brash v. Brash Estate, the Superior Court of Justice ruled that the applicant’s children were under an obligation to support the applicant (their mother), and thus should be added to their mother’s dependant relief claim. The case saw a 90-year-old widow opt for an equalization payment against her late-husband’s estate, as she claimed to fall under the legal realm of a “dependant” under the Succession Law Reform Act (Part V – Section 57 of the Act defines the scope of the term “dependant”). She had been left with practically nothing under his will, and therefore sought compensation from the estate that was now in the hands of his children. Being that she had four children of her own that were within their means to support their widowed mother, his children sought to add them as parties to the proceeding. In the interest of justice to the Act and especially to the estate of the late husband, Justice Cornell ruled that her children should be added as parties to the proceeding. Justice Cornell pointed to the...

When a court orders that one of the parties are entitled to a specific amount of spousal support in accordance with the SSAG, the Court will also award a lump sum retroactive spousal support award from the date of the application until the present day. The first issue is how the Court determines said amount. At first glance, it seems reasonable and obvious that the Court would multiply the amount awarded in spousal support per month by the amount of months in arrears. However, in reality, that is not a fair and reasonable figure as it does not take into account the fact that monthly spousal support payments are deductible to the payor and taxable to the recipient. Therefore, decisions such as Hume v. Tomlinson, Elgner v. Elgner, and Vanasse v. Seguin, stress that the Court has an obligation to consider the tax consequences when ordering a lump sum retroactive spousal support award. In Thompson v. Thompson, the Court explained its position on the matter as follows: "The quantification of retroactive spousal support, the range that is generated by the SSAG must be adjusted because these ranges are based upon periodic ongoing payments which are presumed to be taxable in...

The difference between a court order directing a review of spousal support and an order to vary support is critical and imperative to understanding what courses of action a judge can take in either circumstance. If a judge has ordered to review support at some specific point in the future, then upon review, the case is completely reopened and the judge may take whatever measures he sees fit in accordance with the objectives of the Divorce Act. In cases where a court is presented with a variation order of support, the judge is restrained from completely reopening and reviewing the case. The only option left for the court is to vary spousal support based on a material change in circumstance. This distinction between a review and variation of spousal support was demonstrated in the case of Marche v. Wagstaff. In this case, the Court of Appeal sent the matter back to the trial court because, in its view, the trial judge had failed to apply the proper course of action when dealing with a variation of spousal support. The Court of Appeal ruled that allowing the husband to discontinue spousal support payments on the basis that his wife did not make a...

In cases where a party is awarded spousal support, the recipient will want to obtain some sort of guarantee in the event the payor suddenly dies. It is for this reason that courts have the ability to compel a spousal support payor to alter his/her life insurance policies and name the recipient as a beneficiary to the life insurance policy. As was witnessed in Scheelar v. Scheelar, this can pose a significant problem if the payor dies without complying with the clause in the separation agreement that compels him/her to name the recipient as beneficiary to the policy. In such cases, if the parties included in the agreement a standard clause such as the following, “in the event that the husband should die without such life insurance being in effect, notwithstanding that he remain subject to the obligation to pay child and/or spousal support, the wife shall be entitled to a first claim upon the estate of the husband for the sum of $500,000,” then the payor must have assets for the recipient to collect on his/her spousal support entitlement. In cases where the payor did not have sufficient assets, courts such as the one in Scheelar, refused to order...

As conveyed in the case of Boston v. Boston, there is no absolute prohibition against a spouse recovering double of his/her share in spousal support (commonly referred to as “double-dipping”). However, the Court of Appeal in MacQuarrie v. MacQuarrie stressed the fact that courts will attempt to steer away from a ruling that awards a “double-dipping” of spousal support when it is fair to do so. It is worth noting, that in MacQuarrie, Justice McQuaid pointed to the reality that some cases will call for a double recovery of spousal support in the interest of the principle of fairness. Recent case law suggests that the principle against “double-dipping” surfaces when spousal support is awarded on a compensatory basis rather than one predicated upon necessity. In Senek v. Senek, the Court ruled that, despite a material change in circumstance where the husband had recently retired, the wife was entitled to “double-dip” and receive spousal support from her husband’s pension simply on the basis of necessity. Therefore, when a Court is faced with the dilemma of awarding a double-recovery of spousal support, the Court will render a decision based on principles such as fairness and necessity. To learn more about double dipping...

In many matrimonial cases, one of the parties will find themselves in a precarious financial situation. More often than not, a mother who sacrificed her career to take care of the children of the marriage, will find herself in need of interim spousal support upon the dissolution of the marriage. Justice Douglas, in Horowitz v. Nightingale, outlined the various principals of interim spousal support as stated in the case of Driscol v. Driscol. They are: On applications for interim support the Applicant's needs and the Respondent's ability to pay assume greater significance; An interim support order should be sufficient to allow the Applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it; On interim support applications the court does not embark on an in depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best; The courts should not unduly emphasize any one of the statutory considerations above others; On interim applications the need to achieve economic self-sufficiency is often of less significance; Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional...

Estephan v. Estephan is a family law case that has recently been decided by the British Columbia Court of Appeal on the issue of specifically attacking Separation Agreements. Facts The parties started living together in 1986, married in 1996, and separated in 2005. The parties had two children. The wife was the primary caretaker for the children throughout the marriage and the husband was a successful lawyer. The wife has serious health issues that prevented her from working on an ongoing basis. After a mediation, the parties purportedly settled all financial and parenting issues, including the wife providing a release of spousal support in return for a lump sum. The parties had obtained independent legal advice, there was financial disclosure prior to any mediation, the husband did not hide any assets, and the wife received an unequal division of family property. The wife then moved to overturn the Agreement through the family law courts. She also asked the court for spousal support. At trial, the crux of the issue was whether the agreement was signed in "unimpeachable circumstances." Decision at Trial The trial Judge found that the separation agreement was binding. Decision on Appeal The British Columbia Court of Appeal allowed the appeal...

Should retroactive child or spousal support be ordered? There are four factors to consider for retroactive child or spousal support: 1. A reasonable excuse for why support was not sought earlier Certainty is important and the support seeker must have a reasonable excuse for why they did not seek support earlier. For instance, the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family, the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice. 2. Conduct of the payor parent Courts take an expansive view of what constitutes blameworthy conduct. For instance, blameworthy conduct of the payor parent is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. 3. Circumstances of the child [recipient parent in the case of spousal support] A...

The case of Djekic v. Zai is a proper example and model of how the courts will and should determine the issue of spousal support. When a Judge is tasked with the burden of issuing a ruling regarding spousal support, the Judge is required to look at the case as a whole. This means that the Court will look at all the circumstances that surround the parties to the matter. The issue of Quantum is related to the issue of duration. In the above-mentioned case, the Court ruled in favor of the Applicant and varied the decision made by the Trial Court. The Court of Appeal explained that, in its decision to vary spousal support whereby the Applicant would be entitled to support on an indefinite basis, it was incumbent on the Court to consider all of the circumstances of the Applicant; including the fact that she was over the age of 65, disabled, and received a small pension. This case has strengthened what Family practitioners and adjudicators have come to know as the Rule of 65; essentially, another consequence of courts taking all relevant circumstances into account when ruling on the determination of spousal support. To learn more about...

Jans v. Jans is a 2013 decision from the Alberta Provincial Court. Issue The issue of spousal support arose where a single parent was the sole caregiver to a disabled child. Facts The parties started living together in 1989, married in 1991, and then separated in 2010. The wife was a stay-at-home mother for most the marriage and the father was the breadwinner. The youngest child of the marriage had Down Syndrome and lived with the wife. It was clear from the facts of this case that the child would require a significant amount of care from the mother on a continuing basis. The wife worked part time with a yearly income of $25,850 and the husband earned $41,250 per year in seasonal work. Decision The wife earned a compensatory claim for spousal support. Justice P.E. Kvill of the Alberta provincial Court notes that the Spousal Support Advisory Guidelines (commonly known as the SSAG) are not mandatory piece and are only advisory. He finds that the SSAG do not adequately address a situation where one parent is the sole caregiver for a disabled child and therefore, orders that the mother should receive a lump sum of spousal support (equalling slightly more than...