Divorce Dispute: Spousal Support Payments

A Vancouver couple divorced after 17 years of marriage, and later had a dispute over the spousal support payments they had agreed to in their divorce agreement. After the divorce, their three children spent most of their time living with their mother. As outlined in the divorce agreement, the father was to pay child and spousal support to the mother. For nearly 14 years, they followed the agreement according to its terms and conditions, until the ex-husband decided to dispute the agreement. He made a case that he should stop paying spousal support and receive a refund for past payments.

What is Spousal Support?

After a divorce, it’s common for one party to pay spousal support to help both parties maintain their ‘normal’ lifestyle. In this case, at the time of the divorce, the husband earned $185,000 per year, making the wife entitled to $1,400 per month in spousal support. The wife was not working at the time as she was taking care of their children, full-time. Besides the spousal support, the wife received child support payments of $2,672 per month and 60% of the family’s assets.

According to the Divorce Act, spousal support must satisfy the following criteria:

1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
2. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and,
4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The Original Divorce Agreement

The couple’s divorce agreement specified that one spouse would continue to pay spousal support until they established a new agreement. The earliest that the spousal support payments could be adjusted was Feb. 1, 2007, three years after the date of signing the document. Neither of the two parties had chosen to have the spousal support adjusted on this date, or any date thereafter.

Almost 14 years after the signing of the divorce agreement, in August 2016, the ex-husband claimed that he misunderstood their agreement. He assumed that the spousal support was to be terminated on Feb. 1, 2007, not the date of when they could renegotiate. He argued that the payments should be discontinued. Further, he argued he should be reimbursed for the excess spousal support he had been paying since Feb. 1, 2007.

The judge declared that the ex-wife still had a right to the spousal support, and a misunderstanding of the agreement by the ex-husband didn’t mean it should be enforced as he understood it. The ex-husband was to continue to pay the spousal support until October 2021.

Was the Ex-Wife Entitled to Even More Spousal Support?

The ex-wife argued during the trial that she deserved more than $1,200 per month in spousal support. At the time of the trial, an expert witness estimated the ex-husband’s annual income to be $1,200,000, a significant increase from the $185,000 he was earning when they signed the agreement. The ex-wife argued that this was partially because of the sacrifice she made to withhold her career and care for the children. He countered this by stating that the skills and abilities he learned had no connection to their past marriage whatsoever.

Guidelines on Spousal Support

According to the Spousal Support Advisory Guidelines (SSAG), section 14.3 states that “some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should by how much”. It all depends on the length of the marriage, the rules adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job versus promotion with the same employer, or career continuation versus new venture).” Keep in mind that the SSAG is not the law in BC, but judges use it to help base their decisions.

The judge decided that the ex-husband’s career and skills he acquired during his employment change couldn’t be attributed to the marriage. The judge determined that the wife ‘made no contribution’ to his training or business.

The trial judge decided not to make any changes to the divorce agreement, except for setting a firm termination date for the spousal support in October 2021. Both parties lost their arguments in this trial; however, the ex-wife went on to later appeal the judgement.

The Appeal Judge Thought Otherwise

In the appeal trial, the court found a mistake of law with the previous judgement. The judge determined that the courts “must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law.” While the wife may have not explicitly contributed to the husband’s newfound success, she still limited her ability to pursue her own career. The couple made “a joint investment in one career.” While she was taking on the caring responsibilities in the family, she was unable to further pursue a career of her own. She argued that if she chose not to do this, she would have a higher-paying job than she currently has now.

The judge granted the appeal. The Court noted that according to the SSAG, the original $1,400 per month that she was receiving was much lower than suggested – the spousal support should have been in the range of $2,947.89 – $3,930.51. Using this approximation, the wife could expect a monthly support payment closer to $20,000 due to the ex-husband’s new income. The appeal judge removed the termination date for the payments, initially set for October 2021.

How You Can Learn from This Case

To learn from this case, we encourage you to consider a prenuptial agreement before marriage. A properly documented prenuptial agreement could save you countless hours of stress in the unfortunate situation of a divorce. Further, writing a prenuptial agreement with your partner is a good opportunity to reflect on and plan for the future.

Looking for more information? Read our page on divorces and the law in BC.

Have a question about this topic or a different legal topic? Contact us for a consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.