In its recent decision in Sebok v. Babits, the British Columbia Court of Appeal confirmed that the federal Spousal Support Advisory Guidelines need to be considered by courts in making spousal support decisions.
What Are the Spousal Support Advisory Guidelines?
The Spousal Support Advisory Guidelines (the “Guidelines”) were initially developed by the federal government in 2005 to bring more certainty and predictability to the determination of spousal support under the Divorce Act. The Guidelines were finalized in 2008. Unlike the Federal Child Support Guidelines, the Spousal Support Advisory Guidelines have not been legislated by the federal government. They are informal guidelines that operate on an advisory basis only but are usually considered by courts in the determination of spousal support orders.
The Spousal Support Advisory Guidelines contain formulas that generate a range of periodic or lump‑sum spousal support awards. They outline two calculation frameworks: one that applies to situations where a child support order is in place, and one for cases where child support is not applicable. The Guidelines do not apply for indefinite support and support must be reevaluated as required by the court or as circumstances dictate. The formulas under the Guidelines generally apply only to spousal income of $350,000 or under.
Wife Granted $50,000 in Spousal Support for Role as Primary Caregiver
In Sebok v. Babits, the British Columbia Court of Appeal was asked to review a support order made by the lower court awarding spousal support in favour of the wife, Susane Babits.
At the time of their separation, Ms. Babits and her former spouse, Andras Sebok, had been married for nearly 28 years and had four children together. As noted by Justice Marchand, the couple had a tumultuous marriage. Mr. Sebok was a “real estate agent, gambled, dabbled in questionable income-generating activities and was the primary income earner”, while Ms. Babits was the children’s primary caregiver and earned limited income.
In the initial trial decision, Ms. Babits was awarded a lump sum spousal support payment of $50,000 based on her role as the primary caregiver of the couple’s children. This award was made even though post-separation, Ms. Babits actually had a higher income than her former spouse. At the time of the appeal hearing, Ms. Babits was 61 years old, and Mr. Sebok was 68.
BCCA: Trial Judge Erred in Failing to Apply Spousal Support Advisory Guidelines
Upon appeal of the initial trial decision, the Court of Appeal found that the trial judge erred by failing to apply the Spousal Support Advisory Guidelines to the support order granted to Ms. Babits. The Court found that there were no exceptional circumstances that would warrant a spousal support award to the higher-earning spouse. In fact, under the Guidelines, Ms. Babits would be obligated to pay support to Mr. Sebok. As a result, the Court set aside the order granted at trial.
Entitlement to Compensatory Spousal Support
In a lengthy discourse on the various factors that judges must consider in arriving at a spousal support decision, the Court of Appeal confirmed that compensatory spousal support is the “equitable sharing of the economic consequences of a marriage or its breakdown”. The court explained that this type of spousal support:
… “provides redress for economic disadvantage arising from the marriage (such as diminished earning capacity and sacrificed career opportunities to take on child care responsibilities) or the conferral of an economic advantage upon the other spouse (such as contributions to enhanced career development)”.
An order for compensatory spousal support must consider both the entitlement to the support, as set out above, and the quantification of support. Even if a spouse is entitled to spousal support, the amount of such support is subject to a wide variety of factors.
Spousal Support Advisory Guidelines to Be Considered in Quantification
The Court of Appeal noted that the Spousal Support Advisory Guidelines come into play when determining the quantification of spousal support. Justice Marchand wrote that once the spousal support entitlement is established, the courts must then quantify this entitlement by considering the other (payor) spouse’s financial means and circumstances, including their employment income, capital base, earning capacity, or any other sources of income.
The court confirmed that the process of quantifying spousal support requires consideration of the Spousal Support Advisory Guidelines. Only under exceptional circumstances can a court justify a substantial departure from the Guidelines.
Contact Meridian Law Group in Vancouver for Trustworthy Legal Advice on Spousal Support
The dedicated family lawyers of Meridian Law Group have extensive experience representing clients in spousal support matters. The firm provides dependable advice and customized legal solutions that protect clients’ rights and quell their concerns in family law disputes. Meridian Law Group forcefully advocates for clients in any legal forum, whether negotiation, mediation, arbitration, or litigation.
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