Spousal support is paid by one spouse to the other following a separation or divorce. This type of support is intended to recognize each spouse’s contributions to the relationship or help a non-earning spouse become financially self-sufficient.
This article looks at how spousal support payments are calculated. We also look at a recent decision of the Court of Appeal for British Columbia in which a parent challenged the spousal support calculation.
What is spousal support?
Spousal support will not be warranted after every separation. The two main types of support that a spouse or common-law partner may be entitled to are compensatory and non-compensatory support.
Compensatory spousal support
Compensatory spousal support recognizes a spouse’s contributions to the relationship. It is most commonly awarded to a spouse who stayed home to raise children or maintain the home, rather than earning income or developing a career.
Non-compensatory spousal support
Non-compensatory support addresses situations where one spouse has been disproportionately affected by the breakdown of the relationship to allow them to become financially independent.
When is spousal support payable?
Spousal support may be ordered by a court or agreed to as part of a domestic agreement formed when the couple starts cohabiting, gets married, or separates.
In British Columbia, married spouses and common-law partners may be eligible to claim spousal support after separation. The latter are governed by British Columbia’s Family Law Act, while the former apply for support under the federal Divorce Act.
How is the amount of spousal support calculated?
The federal Spousal Support Advisory Guidelines are typically used to calculate the amount of spousal support payable. The Guidelines suggest appropriate ranges of support in a variety of situations. They are not law, but judges often base their decisions on the Guidelines, and family lawyers also use them as a guide when drafting domestic agreements.
The Spousal Support Advisory Guidelines do not generate a fixed figure for either the amount or duration of spousal support. Instead, they produce a range of outcomes that provide the starting point for negotiation or adjudication. For example, it is common to speak of support awarded in the lower or higher part of the applicable range.
Formulas under the Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines set out two basic formulas for determining the amount of spousal support – one for where there is a dependent child or children of the marriage and a concurrent child support obligation, and one for where this does not apply. In the former situation, child support must be calculated first and given priority over spousal support.
These formulas determine the amount and duration of support by relying on other factors, including:
- The income difference between the spouses;
- The length of their relationship; and
- The division of division-making/parental responsibility (i.e. custody arrangement) for the couple’s children.
Deviation from Spousal Support Advisory Guidelines unwarranted without justification: BCCA
In O.C. v M.V.S.G., the parties were married in 1999 and had three teenage children. They separated in 2019, although they were living in different parts of the family home with the children at the time of trial. At trial, the judge determined that the mother was entitled to spousal support on both compensatory and non-compensatory grounds. For support purposes, the father’s income was assessed at around $115,000, with the mother’s income at $18,000.
The mother was experiencing health issues. The judge dismissed the father’s argument that she was intentionally underemployed, finding that significant impediments prevented her securing a full-time position.
However, the judge refused the mother’s request for a lump sum award of spousal support to enable her to buy out the father’s interest in the family home. The judge decided that the father had sufficient income to pay monthly spousal support and did not have access to capital assets that he could liquidate for a lump sum. The judge ordered monthly spousal support of $1,750, with no retroactive support. This amount was calculated at the higher end of the range based on figures supplied by the mother ($1,080 to $2,069).
Higher end of Guidelines range, retroactive support appropriate
The father appealed the spousal support order, arguing that the trial judge had incorrectly calculated spousal support. He claimed that the judge erred by applying a shared parenting range under the Spousal Support Advisory Guidelines, given that the mother had been granted primary care of the children.
The Court of Appeal noted that, under the Guidelines, the range for monthly spousal support in cases where one parent has primary parental responsibility is $121 to $720. The trial judge’s award of $1,750 was more than double the high end of the range. The Court said that an award that is substantially lower or higher than the applicable range may justify appellate interference, particularly where there is no explanation for the anomaly (such as exceptional circumstances).
As a result, the Court of Appeal reduced the spousal support award to the highest end of the range at $720 per month. It determined that the highest amount was appropriate as the parties were married for 20 years and assumed traditional roles, and the mother had primary parental responsibility and considerable financial needs. Additionally, the Court found that the reduction in support necessitated an order for retroactive spousal support in the amount of $19,000.
Contact Meridian Law Group in Vancouver for Seasoned Representation in Spousal Support Matters
Meridian Law Group provides comprehensive advice regarding spousal support and assertively advocates for clients’ rights and financial interests. The firm’s family lawyers are passionate about helping clients resolve the issue of spousal support as efficiently as possible so they can focus on moving forward with their lives.
Located in downtown Vancouver, Meridian Law Group proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your family law matter, please call 604-687-2277 or reach out online.