When a couple decides to end their marriage, several things must be determined before the divorce can be finalized, such as the appropriate division of family property.
If the couple has children together, decisions must be made regarding custody and support of such children. In addition, divorce often involves an assessment of spousal support, wherein the party to the marriage who earned a higher income throughout the duration of the marriage is ordered to pay the lower-income-earning spouse a monthly sum for a defined length of time.
Although many people are familiar with spousal support, fewer comprehensively understand how such assessments are undertaken. For example, many assume that spousal support is always payable in every instance of divorce and that such payments continue perpetually. In reality, spousal support is not always payable in every divorce case. Moreover, when such payments are ordered, they are often time-limited or tied to other constraints that dictate how long the money will be payable. Further, many people do not understand that spousal support payments, even when ordered by a court, are not necessarily static but are elastic and can be amended upon application to the court.
Fortunately, the recent British Columbia Court of Appeal decision in Cohoon v Stobo provides significant guidance concerning how spousal support is assessed in the province of British Columbia.
A Tale of a Marriage
In the case of Cohoon v Stobo, the respondent and claimant met and began to live together in 1995 when each was in their early 20s. The couple married in 2007 and had one child together, a daughter. In the early years of their relationship, they neither made much money nor had any assets. They lived a self-described “hippie lifestyle,” which included living in a van and, for a period of time, making a living by selling drums at craft fairs. Respondent eventually entered the film industry, first as a grip, then a key grip, on film sets around Vancouver. Respondent established some success in the field and eventually incorporated two companies through which he offered his personal services as a key grip and rented out grip equipment to production companies.
For the first few years after the birth of their daughter, the claimant stayed at home and raised their child. She did not engage in any income-producing activities during this time. In 2003, the Claimant enrolled in a midwifery program, which she completed in 2007, after which she worked until 2021. The claimant provided her midwife services through a company she incorporated. The claimant testified that she had been unhappy as a midwife since about 2017 when she began exploring other career alternatives. This led her to enroll in 2018 an executive MBA program, which she completed in 2020. In February of 2022, the Claimant accepted a full-time position as a relationship manager for a financial services company.
Respondent and the Claimant separated in January 2019 and commenced legal proceedings in the BC family court system.
The Original Court Order
The BC family court judge that heard the original divorce application regarding these parties determined that Respondent should pay Claimant $3,000 monthly in spousal support “for an indefinite period but subject to review.” This decision was based on the Respondent’s annual income of $200,000 and the Claimant’s annual income of $100,000. It was rooted in the trial judge’s conclusion that “(the Respondent) would have been unable to achieve the substantial success he has achieved in the film industry were it not for the contributions of (the claimant).”
The Appeal
Respondent appealed both the entitlement to and the amount of spousal support ordered. He alleged that the trial judge had made some errors in her interpretation and application of the law and that he should not have to pay any spousal support to the Claimant or, in the alternative, that the amount ordered should be less than $3,000.
The Legal Principles Applicable to Spousal Support
In British Columbia, spousal support is determined by section 15.2 of the Divorce Act. Section 15.2(4) dictates that, in making an order for spousal support, a court must consider the following criteria:
- the length of time the parties cohabited
- the functions each spouse performed while they cohabitated (i.e., what was the division of responsibilities with respect to child care, home maintenance and chores, etc.)
- any existing order, agreement or other arrangement between the parties with respect to the support of the other
Section 15.2(6) then dictates that any order for spousal support should:
- recognize any economic advantage/disadvantage to either spouse as a result of the end of the marriage
- apportion any financial consequences that arise from the care of any child of the marriage between the parties and prioritize such apportionment over any obligation for the support of any child of the marriage
- to relieve any economic hardship of the spouses that arises as a result of the divorce
- as far as is possible, promote the economic self-sufficiency of each spouse within a reasonable period of time
As the Court of Appeal noted,
“Canadian courts recognize three distinct bases upon which a spousal support award may be made: compensatory, non-compensatory and contractual. These three models for support are not mutually exclusive”.
In Cohoon v Stobo’s case, the first instance judge had ordered that Respondent pay compensatory spousal support.
What is Compensatory Spousal Support?
The goal of the courts in ordering compensatory spousal support is to “support the equitable sharing of the economic consequences of a marriage or its breakdown. It is intended to provide ‘redress from economic disadvantages arising from the marriage (such as diminished earning capacity and sacrificed career opportunities to take on childcare responsibilities) or the conferral of an economic advantage upon the other spouse (such as contributions to enhanced career development)’”.
In the court’s view, marriage is an economic partnership. One partner may make economic sacrifices to benefit the family, such as being a stay-at-home parent for several years. However,
“this arrangement of mutual benefit is disturbed upon the breakdown of a marriage. Absent some form of compensation, a spouse’s financial sacrifices will often be borne exclusively by that spouse in the form of diminished earning capacity, and the financial benefits conferred on the other spouse will, absent compensation, exclusively benefit the advantaged spouse. Compensatory support, therefore, attempts to equitably share the economic consequences of a couple’s roles and their choices during the marriage”.
Can the Obligation to Pay Spousal Support be Amended or Removed Altogether?
In this case, Respondent sought to appeal the lower court’s decision that ordered him to pay $3,000 in spousal support to Claimant each month. He appealed that decision based on a mistake made by the judge in her original analysis of whether spousal support was owed and her conclusions in that respect. The Court of Appeal, upon review of the trial judge’s decision, agreed with Respondent that the trial judge had misapprehended or misapplied the law when she decided that Claimant was owed monthly spousal support.
The Court of Appeal carefully reviewed the trial judge’s rationale for her findings and noted that she had misinterpreted the first branch of the compensatory support inquiry, in that Claimant had not foregone any career opportunities to stay married to Respondent, nor had she made any economic sacrifices or suffered a slowdown in her career as a result of the marriage. The claimant had not relinquished promising career opportunities because of her marriage to Respondent, nor had she been “handicapped by marriage.” The Court of Appeal found that “to some degree, the opposite was true. Mr. Cohoon, from very early on in their relationship, encouraged Ms. Stobo to study, pursue her dreams and become self-sufficient. Ms. Stobo initially stayed home with their daughter because her career aspirations were modest, and the parties’ financial circumstances were not strained. However, she ultimately achieved her career aspirations, and it does not appear… that she was delayed in doing so”.
The Court of Appeal was satisfied that, while the Claimant’s decision to stay home with the couple’s daughter in her early years did facilitate the development of the Respondent’s career, so too did the Respondent facilitate the Claimant’s career by actively supporting her, financially and otherwise, in her educational and career pursuits. Given that “there was no evidence that Mr. Cohoon received any additional economic benefit from being able to establish his career before Ms. Stobo established hers” and that there was no “evidence that Ms. Stobo would have been in a different economic position had she obtained her professional qualifications a few years earlier,” the court was satisfied that the early conferral of a benefit to Respondent, in allowing him to develop his career first, did not support a compensatory support award.
The Court further noted that compensatory spousal support is intended to be paid only until “compensation is achieved,” meaning until the parties have achieved roughly equivalent financial positions, and that “compensation for Ms. Stobo was, in a sense, ‘achieved’ during the marriage. This was so through the division of the parties’ family property and their respective Guideline incomes”. The appellate court was satisfied that “this rough equivalency in the parties’ ongoing ability to maintain their respective standards of living was … inconsistent with the compensatory spousal support order made by the judge”, and it set aside the order for spousal support such that Respondent now owed Claimant nothing in terms of spousal support.
Vancouver Family Lawyers Advising Clients on Spousal Support Matters
The family law lawyers at Meridian Law Group are experienced in assisting clients to navigate the choppy waters of family law disputes. Whether your dispute relates to property division, domestic agreements, family violence, or parenting issues, Merdian Law Group’s family law lawyers have the knowledge and expertise to guide you through the process and ensure your rights are preserved and protected at every step.
Contact a family lawyer at Meridian Law Group today, either online or by telephone, at (604) 687-2277, to schedule a confidential and comprehensive meeting with one of our capable team members.