Lorne MacLean, QC the founder of MacLean Law, handles a number of high income BC child support guideline disputes. MacLean Law routinely negotiates, mediates and litigates BC child support disputes on behalf of paying and recipient spouses.

Lorne MacLean, Q.C. High Income BC Child Support Lawyer

How Do BC Child Support Guidelines Work?

Did you know before 1997 that BC child support was tax deductible by the paying parent and taxable in the hands of the receiving parent? As the guidelines now approach nearly 20 years of age, most separated spouses are aware that guidelines are a set of rules and tables for calculating the amount of support that a paying parent should contribute toward his or her children.

The BC Child Support Guidelines “CSG” consider three main factors:

• the annual income of the paying parent (and in shared custody and section 7 special expense cases the receiving spouse too);
• the number of children the separated spouses have;
• where the paying parent lives.

What About High Income BC Child Support Cases?

The guidelines work well for setting fair amounts of support up to $150,000 but above that the BC Child Support Guidelines may amount in payments that exceed the true needs of the child.  Such excessive child support payments may result in an unintended functional wealth transfer to the paying parent’s ex-spouse. In practice paying spouses are unlikely to get relief from a straight application of the table amount until their income approaches $1,000,000.

If you have a high income and are involved in a BC child support case or you seek fair child support from a wealthy paying parent, you need to get focused legal advice from a lawyer like Lorne MacLean, QC who handles these cases daily.

MacLean Law High Income BC Child Support Win On Income Over $150,000

Lorne MacLean QC’s,  ARJ v. ZJ case is frequently relied upon in BC courts for high net worth spousal support and child support issues, for double dipping arguments and for how the income of a professional should be calculated.

The  BC Supreme Court Justice succinctly stated the onus on the paying spouse on the law of child support when the payor spouse earns over $150,000. To succeed in obtaining a lower amount than a straight child support guideline calculation, the paying spouse must prove:

     Child Support

 [38]           Under section 4 of the Child Support Guidelines if the payor makes more than $150,000 annually, then the court has the discretion to either increase or decrease the table amount, if the table amount would be unsuitable given the conditions, needs and means of the children and the parties:  see Francis v. Baker, 1999 659 (SCC), [1999] 3 S.C.R. 250, 1777 D.L.R. (4th) 1. 

[39]           The presumption is that the table amount is appropriate and the party seeking a different amount must rebut that presumption with clear and compelling evidence: Hollenback v. Hollenback, 2000 BCCA 620 , 2000 BCCA 620.

[40]           In the circumstances I find that child support is payable in the amount of $8771 per month.

The combined spousal and child support award together with private school fees and other add on expenses totalled nearly $30,000 a month.

If you wonder what the dollar amount of spousal and child support you are entitled to and what your chances are of departing fro the BC child support guidelines or the Spousal support advisory guidelines we recommend you meet with our experienced BC child support lawyers at any of our 4 offices across BC located in Vancouver, Kelowna, Surrey and Fort St John, BC.

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BC Spousal and Vancouver child support cases involve the use of support guidelines to reach a fair payment for all parties involved in a support dispute. The Child support guidelines and the Spousal Support Advisory Guidelines ONLY work when the correct amount of income is used for both spouses.

Lorne MacLean QC – Founder of Maclean Law

Our BC Self Employed Guideline Income Calculation Lawyers Will Ensure A Proper Guideline Income DeterminationHowever, we often see spouses and even some family lawyers involved in child and spousal support cases, confused over how, or what, the correct way to determine their own income or their spouse’s income is. For our high net worth clients and our wealthy businesspersons who have large company or professional earnings that they need to use to continue to make profits, the proper calculation of spousal or child support is imperative.

Our BC Self Employed Guideline Income Calculation Lawyers will fully protect the wealth you have worked so hard to create whether by being a homemaker or a breadwinner. Contact us before a mistake is made. Our toll free number is 1-877-602-9900 for all 4 office locations in Fort St John, Kelowna, Surrey and Vancouver. 

The personal tax return line 150 is not the holy grail of guideline income determination. Guideline income calculation issues can included:

• Capital gains and stock options;
• discretionary income;
• personal benefits received;
• barter or cash under the table;
• corporate or partnership pretax profits;
• one time sources of income;
• imputed income;
• averaging incomes when incomes fluctuate;
are among several complex issues that require a sound legal strategy to ensure the right income is used before we press the “calculate” button.

Corporate Pre-tax Profits Can be Less Than Monies Drawn Out AND Section 18 of the Child Support Guidelines Can Be Used to Lower Income Below Tax Return Line 150

Lorne MacLean, QC has succeeded in court on arguments that a lower income than the line 150 tax return be used in spousal and child support cases. Here is an extract from one of his recent successful argumemnts on behalf of a paying spouse.

Lorne Maclean QC used this extract from Bartkowski  to obtain a lower support payment based on a lower income being used than that which was found on his client’s income tax return:

[34] As can be seen, nothing contained within these provisions of the Guidelines indicates that s. 18 cannot be used to reduce the “line 150” amount. It is possible to read the phrase “does not fairly reflect all the money available to the spouse” in s. 18(1) to mean that that section will only apply when more income is available to the payor spouse than was reported in line 150. However, this interpretation probably lends too much significance to the wording, especially since s. 18(1) imports s. 17 into it. [35] Section 17 defines broad parameters for varying T1 amounts when it “would not be the fairest determination” of income. I conclude from this interpretation that the purpose of s. 18 is to assist courts in making the fairest determination possible and as a result the narrow reading and the narrow interpretation that it can only be used to increase the line 150 amount would unfairly restrict this application. [36] In Francis v. Baker, [1993] 3 S.C.R. 250, the Supreme Court of Canada considered the proper interpretation of s. 4 of the Guidelines. That section empowers the court to set an amount for child support that it deems “appropriate” when the payor spouse’s income is in excess of $150,000.00 and the court considers the Guideline table amount to be “inappropriate”. Bastarache J. held that s. 4 could be used to vary the support by either increasing or reducing the table amount. He explained, at para. 40, that the section must be interpreted in light of the stated objectives of the Guidelines:

A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute. In my opinion, the plain language of s. 4 is consistent with such an interpretation. Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate”. Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000.
[37] It is noteworthy that Francis deals with a provision of the Guidelines which utilizes the word “inappropriate”, and as such, these comments are of limited assistance. It is apparent, however, from Francis that an interpretation of s. 18 of the Guidelines should give effect to the objectives of flexibility and fairness, although s. 18 makes no reference or mention of “appropriateness”.
[38] A question arises therefore; whether s. 18 is open to such a broad interpretation as was found by the Supreme Court of Canada in Francis, supra, to apply to s. 4.
[39] In Francis, the court was dealing with varying the Guideline table amount under s. 4 and not the line 150 income amount.
[40] A review of the provisions of the Guidelines, however, demonstrates that they are generally designed to allow courts to arrive at an amount of child support that would be appropriate in all the circumstances. In Francis, the Supreme Court of Canada obviously favoured a broad interpretation of the legislation when it considered the application of s. 4. This objective perception of the Guidelines was recently commented on by Wedge J. in Bucholtz v. Smith, 2001 BCSC 1176 (CanLII), 2001 BCSC 1176, where at para. 161 she stated:

The Guidelines are designed to establish a fair standard of support for children regardless of a spouse’s intent: . . .

[41] It would follow therefore that if the purpose of the Guidelines is ultimately to arrive at an income that is fair and accurate in all the circumstances, a narrow interpretation restricting the application of s. 18 only in limited circumstances where more income can be imputed to the payor spouse than appears on line 150 would be inconsistent with the legislative scheme. “Fair” must mean that the amount available for child support is fair as between the payor parent and the recipient child. If the amount of income declared in the tax return at line 150 truly does not reflect the amount of income available to the payor spouse for the payment of child support, the court should be able to consider how much income is actually available so that it might order a reward that is both fair and realistic.
[42] I therefore find that s. 18 could apply to reduce Mr. J.R.B.’s line 150 income as did Master Baker in the brother’s litigation. The question then turns to whether or not it is both fair and realistic to make that reduction.

If you have a  high stakes spousal or child support case in BC and you need the assistance of our top BC Self Employed Guideline Income Calculation Lawyers, click here to book an appointment with us to find out what income is really the right one to use before you press calculate.

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MacLean Law is undergoing a robust expansion and we seek high quality intermediate family law associates,with 3-9 years experience, for our Vancouver and Surrey  offices.

MacLean Law’s Waterfront Vancouver office is almost ready. Join us on the entire 29th floor.

This is an exceptional opportunity to enhance the quality of work you receive and to develop a stellar legal reputation with a team of well positioned family lawyers in one of the fastest growing legal markets in the Lower Mainland. This Family Law Careers position can set you on a path to becoming a leading family law lawyer.

We offer you the combined resources of both the Vancouver and Surrey legal teams, along with unparalleled firm marketing and branding resources, this is a rare opportunity to expand your practice profile with one Metro Vancouver’s leading family practices. Do you want to appear at all levels of courts including the SCC?

A proven track record dealing with complex family law matters, including separation agreements, division of assets, and spousal support and fluency in Mandarin or Punjabi will make you the ideal candidate for this opportunity.

Send Resumes to  COO Caren Cook at cook@macleanlaw.ca

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We seek an adventurous family law, personal injury and estate litigation lawyer for our Fort St John office. This career opportunity suits a lawyer who loves the outdoors and beauty of the Peace River area and someone who is passionate about making a difference. This Fort St John Legal Career opportunity provides amazing trial court and complex family law, estate dispute and personal injury experience.

Fort St John and Dawson Creek Legal Careers

There are many benefits to practicing in the small and vibrant community of Fort St John and Dawson Creek. Firstly, there is plenty of work to do as this part of BC is growing at a robust pace given the natural gas industry and the new Site C dam. Secondly, your career will proceed at an accelerated pace with more court work, bigger cases and more hands on client contact right from the start.

In short, you will do the type of work that made you want to be a lawyer in the first place. You will help people move forward through challenging problems and you will make a positive difference in their lives.

Our hard working and well paid clients in the North peace need local lawyers and trusted advisors whom they can form life-long professional relationships with. If you desire a quality Fort St John Legal Career in a state of the art office you owe it to yourself to talk to us.

Are you a lawyer who thinks outside of the box and who wants to be a leader early on in your career?  Are you passionate about making the difference that drove you to become a lawyer in the first place? If you are, apply to our COO Caren Cook by email at ccook@macleanlaw.ca

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MacLean Law has one of the largest and most experienced family law negotiation, mediation, arbitration and litigation teams in Surrey and our other 3 offices across BC. We have 4 senior family mediators, family law arbitrators and child parenting coordinators that can capably assist you in reaching a prompt resolution of your family law case. Our Surrey family mediators, Vancouver parenting coordinators, and BC family arbitrators can also help you with BC marriage and cohabitation agreement negotiations.

Surrey Family Law Mediation Arbitration

Audra Bayer, Surrey and Kelowna family law mediator and arbitrator

Our experienced Surrey family mediators, arbitrators and parenting coordinators act out of our 303-15240 56^th Avenue Surrey family law office located just across the parking lot from Brown’s Social in Surrey. Call us at 604-576-5400 to get an understanding of how our Surrey family mediators and White Rock arbitrators and parenting coordinators can help you move forward successfully.

Our lawyers focus on giving both sides to a family law dispute a “bite of reality sandwich” early on in Surrey Family Law Mediation Arbitration family law proceedings. This saves the parties from stress and contains cost on legal fees.

Our Surrey Family Mediators Use The Family Notice To Mediate

Our senior family law lawyers will also represent you and prepare you for a successful Surrey family arbitration and mediation. Your spouse can be compelled to attend a Surrey family mediation so a trained family mediator can explore a creative settlement of the Surrey family law dispute. MacLean Law knows Surrey Family Law Mediation Arbitration is important in resolving matters early and helping both sides be post separation “winners”.

Here is a nice explanation from the government of BC  family law mediation website

What is the notice to mediate (family) process?

The notice to mediate (family) process enables any party to a family law proceeding in B.C. Supreme Court to compel all other parties to the proceeding to mediate the matters in a dispute in a private and safe environment. Authority for the Notice to Mediate (Family) Regulation is contained in section 68 of the Law and Equity Act. click here to see the entire regulation.

Call our experienced and caring Surrey family mediators at 604-576-5400 if you have a Surrey Family Law Mediation Arbitration issue that you need resolved.

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BC family law cases can be very stressful and frustrating for both spouses. Each side wants to have their position endorsed by the courts. Often both sides have reasonable but differing positions that a judge must pick from to decide a BC family law case. After deciding a BC family case, the family law judge can decide to award costs to the successful party. These “normal” family law costs represent only portion of the actual legal fees paid by the winner to their lawyer.

However, sometimes one party acts so unreasonably that when they lose in court a judge has to decide if the winning spouse should be awarded “special costs” to help defray the legal costs they paid. Special Costs are designed to fully reimburse the winning sides’ legal costs paid.

Lorne MacLean, QC obtained special costs in Canada’s precedent setting Supreme Court Of Canada child custody case of Young v. Young. If you feel special costs are applicable to your BC family law case contact us to find out what your rights and responsibilities are in a BC family law special costs case.

When Are Special Costs Awarded In BC Family Cases?

Bobyn v. Bobyn is a July 2014 BC Supreme Court decision where a father acted inappropriately by failing to disclose his income and the fact he had returned to work in a family law support case. He was also obstructionist in disobeying court orders and his actions increased the legal costs for his wife who was seeking the fair amount of support. The courts are sensitive to people acting improperly and wasting the other spouse’s and the court’s time and money. In Bobyn the husband was sanctioned with an award of special costs to show his actions were deserving of rebuke.

COSTS

[108]     Mrs. Bobyn has enjoyed complete success in this application. She entitled to her costs of not only this application, but of the application she was forced to bring in April of 2014 for an order that Mr. Bobyn provide financial disclosure. [109]     Pursuant to Rule 16-1 of the Supreme Court Family Rules, B.C. Reg. 169/2009, Mrs. Bobyn asks that these costs be assessed as special costs. [110]     Many of the authorities discussing special costs have been recently reviewed by Madam Justice Gropper in Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352.

[111]     An award of special costs is intended to chastise a party for reprehensible, scandalous or outrageous conduct. By rebuking such conduct, the court punishes and deters bad behaviour and distances itself from it: Westsea at para. 37 and British Columbia v. Salt Spring Ventures Inc., 2014 BCSC 356 at para. 11.

[112]     In Westsea, Gropper J. summarized the principles applicable to special costs at para. 73: [73]      I have undertaken a thorough review of the cases involving special costs. Having examined the authorities provided by both sides, it is apparent to me that the courts have been somewhat inconsistent in their determination of what amounts to reprehensible conduct and that those authorities must be reconciled. Based upon my review of the authorities, I have derived the following principles for awarding special costs:

a)         the court must exercise restraint in awarding specials costs;

b)         the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order;

c)         simply because the legal concept of “reprehensibility” captures different kinds of misconduct does not mean that all forms of misconduct are encompassed by this term;

d)         reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court’s process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant;

e)         special costs can be ordered against parties and non-parties alike; and

f)          the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a “bonus” or further compensation for that success.

[113]     Applying these principles, I am persuaded that an award of special costs for both the April 2, 2014 application and the application before me is appropriate. These circumstances are exceptional. [114]     Mr. Bobyn’s conduct has been “reprehensible” as that term has been considered. He deliberately disobeyed court orders requiring him to disclose his change in employment and increase his child support. When legitimate and reasonable requests for financial information were made in furtherance of a legitimate review of his obligation, Mr. Bobyn was abusive and obstructionist. A court order was required to compel financial disclosure. It was not until he wisely obtained counsel that he complied, albeit quite late, with that order. Had Mr. Bobyn complied with prior court orders in 2009 and 2010, these applications would likely have been unnecessary. [115]     Mr. Bobyn’s motives in failing to comply with orders and obstructing legitimate attempts to obtain information were improper. Mr. Bobyn has demonstrated, through his own words, that his goal has been, and remains, to avoid or minimize his child support obligations when he can, for his own gain. Mrs. Bobyn has been prejudiced by this improper motivation – both emotionally and financially. Mr. Bobyn’s conduct is deserving of rebuke in the form of special costs.

Our Special Costs BC Family Law lawyers are experienced in dealing with the issue of Special Costs BC Family Law cases and can be reached at 1-877-602-9900.

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Child support is the right of the child in British Columbia. People often ask our MacLean Law child support lawyers “how long do I have to pay child support?” We advise them that if they are obliged to pay BC child support as a parent, or as a step parent, then their obligation will last at least until their child turns 19 in BC.  We also tell them they will likely pay support past 19 years of age for their child if their child, or step child goes on to post secondary education.

Lorne MacLean, Q.C. High Income BC Child Support Lawyer

Issues concerning support for children over the age of majority in BC  can involve:

• what contribution the adult child and each parent can make;
• what other  financial resources are available;
• how realistic the adult child’s educational plan is;
• the adult child’s academic performance and how long the child has taken to date in school;
• whether the child lives at home or away at a city where their post secondary educational institution is located; and
• rarely, the relationship between paying parent and child.

At what point should children be encouraged to begin to learn self sufficiency skills and start to learn to take their first steps to learn how to support themselves?

How do we balance a child learning to contribute to at least some of their living and educational expenses while ensuring we do not distract them from their studies so they do not succeed in obtaining the skills they will need to support themselves in developing a successful career?

The recent BC Supreme Court decision of Bobyn v. Bobyn reviewed the law on BC child support for adult children over the age of majority. The judge ordered support for the child to continue while she was attending Okanagan College noting how the marriage breakdown hurt her and how her strained relationship with her father impacted her:

…..It is hardly surprising that Jenna struggled in high school. Without her father’s negativity, she has, through hard work, enjoyed success at OC. She has legitimate, very reasonable and attainable goals.

……[62]         I am further persuaded that it has been and remains appropriate for Jenna’s educational pursuits to be financed by her parents. Jenna contributes to her own support through part-time work while attending school, but is clearly unable to meet her educational and living expenses on her own

What Is The Test For Deciding BC Child Support For A Child Over The Age Of Majority?

The learned trial judge gave a very thorough analysis of what the test is and also dealt with cases where child support was being asked for when the child had a poor relationship with the paying parent.

[37]         Section 2(1) of the DA defines “child of the marriage” as follows:

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

[38]         Once a child reaches the age of majority, the presumption is that he or she is no longer a child of the marriage. Once the age of majority is reached, the party seeking child support bears the onus of proving the child remains a “child of the marriage”: Olson v. Olson, 2003 ABCA 56; Nitchie v. Nitchie, 2014 BCSC 468 at para. 18.

[39]         The pursuit of education necessary to equip the child with a career qualifies as “other cause” for continued dependence of a child of the age of majority or over: W.P.N. v. B.J.N., 2005 BCCA 7; Nordeen v. Nordeen, 2013 BCCA 178 at para. 15.

[40]         In W.P.N. v. B.J.N., Levine J.A. summarized this general proposition at para. 18:

[18]      The pursuit of education necessary to equip a child with a career qualifies as “other cause” for continuing dependence of a child of or over the age of majority: Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 at 393 (C.A.). In determining whether a child pursuing an education is unable to withdraw from her parents’ charge or obtain the necessaries of life a court must consider the surrounding circumstances; mere attendance at an educational institution is not sufficient: Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) 121 at para. 17 (B.C.S.C.).

[41]         In determining whether pursuit of education is a valid reason for continued dependence, a court must consider two complex and value-laden questions. The first is whether, considering all of the child’s circumstances, the child’s educational pursuits are reasonable. If so, the court must next consider whether it is appropriate that the pursuits be financed by the parents: Nordeen at para. 16.

[42]         In Farden v. Farden, 48 R.F.L. (3d) 60 at 64-65, Master Joyce set out a list of eight factors that may assist a court in making these determinations:

1.         Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

2.         Whether or not the child has applied for or is eligible for student loans or other financial assistance;

3.         The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

4.         The ability of the child to contribute to his own support through part-time employment;

5.         The age of the child;

6.         The child’s past academic performance, and whether the child is demonstrating success in the chosen course of studies;

7.         What plans the parents made for the education of their children, particularly where those were plans were made during cohabitation; and

8.         At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

[43]         Of course, as is often emphasized, the Farden factors are neither a checklist nor a set of statutorily mandated criteria. Rather, they are considerations for the court in assessing whether the child’s situation is consistent with the definition of “child of the marriage” in the DA: Nordeen at para. 17.

We would be pleased to meet with you to go over the specific facts of your BC  adult child support case. Our skilled lawyers act across BC from offices located in downtown Vancouver, Kelowna, Surrey and Fort St John, BC. Call us toll free 1-877-602-9900.

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Vancouver and BC high net asset divorce and high income spousal and child support cases bring into play a number of exceptions and special challenges. After listening to our explanation of the Spousal Support and Child Support Guidelines, our high income earner clients can be forgiven for concluding “so it’s like the story of Robin Hood then?” We explain it might seem that way but that with proper strategy and evidence the exceptions can be favourably applied. Our BC High Income Support Lawyer legal team would be pleased to meet with you to discuss your case.

Lorne MacLean, QC high income support lawyer

Remember, it is important these exceptions be raised and argued early on in the case or disastrous consequences can result. Ensure you hire a top family lawyer at the outset when the stakes are high.

In BC there are potential high income and family property exceptions for:

• high value family property division cases and how they impact spousal support;
• income earning paying spouses who earn more than $150,000 for child support;
• income earning paying spouses who earn over $350,000 for spousal support annually.
• spousal support when the recipient spouse receives more than half of the family property.

A “Perfect Support Storm” For The Paying Spouse?

These exceptions rarely come into play all at once but in the recent BC Court of Appeal case of Hathaway they did to the consternation of the high income earner husband.

The husband who earned $1,000,000 per year appealed:

1. the spousal support monthly award of: $24,124
2. the child support monthly award of: $12, 814
3. the family property division that gave his wife more than $5 million of the substantial family property which had a total value of $9 million.

The Husband’s Support and Property Division Appeal Failed

 The official case summary states:

The Court is not required, as a matter of principle, to depart from either the SSAG or the FCSG in the context of high-income earners. Any support order must be made on the basis of an individualized, fact-specific analysis. The appellant did not meet his onus of demonstrating that the child support order was “inappropriate” pursuant to s. 4 of the FCSG, or that the spousal support order failed to comply with the objectives of s. 15.2 of the Divorce Act. Similarly, reapportionment is not prohibited as a matter of principle in circumstances involving significant family assets and a high-income payor. The trial judge properly considered the factors under s. 65(1) of the Family Relations Act and addressed the possibility of double-recovery.

One of the problems for the husband was that he had not originally raised the exception arguments before the trial judge as he should have.

BC Child Support For Paying Spouses Earning Over $150,000

The BC Appeal court reviewed the law for BC child support where the payor’s income exceeds $150,000 and then rejected the husband’s appeal on this issue.

 [28]         The leading authority on the principles governing a judge’s discretion under s. 4 of the FCSG is Francis v. Baker, [1999] 3 S.C.R. 250. Madam Justice Newbury provided a concise summary of these principles in Metzner v. Metzner, 2000 BCCA 474 at para. 30:

1)         It was Parliament’s intention that there be a presumption in favour of the Table amounts in all cases (para.42);

2)         The Guidelines figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate (para.42);

3)         There must be clear and compelling evidence for departing from the Guidelines figures (para.43);

4)         Parliament expressly listed in s. 4(b)(ii) the factors relevant to determining both appropriateness and inappropriateness of the Table amounts or any deviation therefrom (para.44);

5)         Courts should determine Table amounts to be inappropriate and so create more suitable awards only after examining all circumstances including the factors expressly set out in s. 4(b)(ii) (para.44);

6)         Section 4(b)(ii) emphasizes the “centrality” of the actual situation of the children. The actual circumstances of the children are at least as important as any single element of the legislative purpose underlying the section (para.39). A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. (para.40)

7)         While child support payments unquestionably result in some kind of wealth transfer to the children which results in an indirect benefit to the non-paying parent, the objectives of child support payments must be kept in mind. The Guidelines have not displaced the Divorce Act which has as its objective the maintenance of children rather than household equalization or spousal support (para.41).

8)         The court must have all necessary information before it in order to determine inappropriateness under s. 4. If the evidence provided is a child expense budget, then “the unique economic situation of high income earners” must be considered.

9)         The test for reasonableness of expenses will be a demonstration by the paying parent that the budgeted expense is so high “as to exceed the generous ambit within which reasonable disagreement is possible”: Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 at 345.

[29]         I would add to this list the comment from Hollenbach v. Hollenbach, 2000 BCCA 620 at para. 45, in which this Court interpreted Francis as creating a “formidable onus” for wealthy payors seeking to establish that the FCSG amount is inappropriate.

[30]         The trial judge was clearly alive to his entitlement to depart, in his discretion, from the table amount under the FCSG. He set out the relevant principles in para. 172 of his reasons, as they apply in the context of a wealthy payor. He referred to the fact that there must be clear and compelling evidence before a court could conclude that the table amount is “inappropriate”. He recognized that the appellant faced a formidable onus to establish that the children could not reasonably use the extra funds, having regard to the standard of living of other children with very wealthy parents.

BC Spousal Support For Incomes Over $350,000

The Appellate court next reviewed the law on when a court could depart from the Spousal Support Advisory Guidelines:

….[66]      Section 11 of the Spousal Support Guidelines is not a hard ceiling or cap. Rather, it is an income level above which the court can choose to apply the formulas or use a discretionary approach.

[67]      Section 12 provides examples of situations in which the court may wish to depart from the formulas set out in the Spousal Support Guidelines. The exceptions are said by the authors to apply in “unusual or atypical cases” where the “formulas generate results inconsistent with the support factors and objectives found in the Divorce Act and an appropriate result can only be achieved by departing from the formula.” The application of s. 12 is not mandatory. Whether the court should consider an exception depends on the specific circumstances in question. [45]         Section 11 describes a “ceiling” and a “floor”, which is an “attempt to define the upper and lower bounds of the typical case, for which guideline formulas can generate acceptable results.” In s. 11.1, the ceiling for a payor’s income is set at $350,000 gross annual income. This is not an “absolute” ceiling or a cap: Smith v. Smith, 2008 BCCA 245 at para. 31. [48]         In The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version (2010), the authors comment that “[t]he formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts” (emphasis in original). The authors state that “[a]bove the ceiling, spousal support cases require an individualized, fact-specific analysis” (emphasis in original). Lastly, the authors note that “[f]ar too often, in these high-income cases, lawyers and judges fail to consider the SSAG formula ranges at all, in arriving at their conclusions.”

57]         In summary, I do not accept the appellant’s position that the trial judge erred in principle by failing to expressly consider s. 11 of the SSAG. The purpose behind a compensatory award for spousal support is to account for the economic advantages and disadvantages of the marriage. It is clear from the trial judge’s reasons that he exercised his discretion to make an award for spousal support that meets those objectives. I would therefore not accede to this ground of appeal.

[58]         Lastly, I have been unable to find support in the case law for the suggestion that courts will apply the SSAG tables on incomes ranging between $350,000 and $700,000, but depart from them above that range. In my view, the argument that the table amount should not be used to determine spousal support was equally available on an income of $688,000 as one of $1 million.

Unequal Division of BC Family Property Can Occur In High Asset Cases

After dismissing the husband’ arguments on child support and on spousal support they also dismissed his claim to set aside the unequal division of the family home in his wife’s favour by stating:

[71]         The objectives behind spousal support under s. 15.2 of the Divorce Act and asset division under s. 65(1) of the Family Relations Act overlap with regard to economic self-sufficiency. This overlap has long been acknowledged and, accordingly, the principles from Moge apply to the analysis under s. 65(1)(e) and (f). This was recently explained by this Court in Bodine-Shah v. Shah, 2014 BCCA 191: [70]      It does not necessarily follow that the respondent’s entitlement to spousal support is diminished or extinguished by reason of the order reapportioning 100% of the family residence in her favour. In Moge, the Court held that the factors and objectives of spousal support listed in ss. 15.2(4) and (6) of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) promote the doctrine of equitable sharing of the economic consequences of marriage and its breakdown upon dissolution (at 864), and that equitable distribution can be achieved by spousal and child support, by the division of property and assets, or by a combination of both (at 849). [71]      While in some cases asset division may address all or most of the objectives of spousal support and thereby eliminate or reduce the need for such an award, that is not necessarily the case, particularly where the conceptual basis for support is predominantly compensatory. See Chutter v. Chutter, 2008 BCCA 507 at paras. 76, 82, 86 B.C.L.R. (4th) 233, leave to appeal ref’d [2009] S.C.C.A. No. 41, and Marquez v. Zapiola, 2013 BCCA 433 at para. 41, 51 B.C.L.R. (5th) 55. As was observed by Madam Justice Prowse in Tedham v. Tedham, 2005 BCCA 502 at paras. 63-64, 47 B.C.L.R. (4th) 254, and Toth v. Toth (1995), 13 B.C.L.R. (3d) 1 at para. 59 (C.A.), there is a “legislative link” between the reapportionment of property under ss. 65(1)(e) and (f) and spousal support. In Tedham, Prowse J.A. identified two potential pitfalls presented by the link between reapportionment of property and spousal support: (1) the potential for double recovery; and (2) the potential for inadequately compensating an entitled spouse. Where there has been a reapportionment of family assets in favour of one spouse, that spouse’s entitlement to and the quantum of spousal support will be determined by the extent to which the reapportionment of property is found to have adequately compensated him or her for the economic consequences of the marriage and its breakdown, including any claims for compensatory and non-compensatory support. [Emphasis added.] [72]         While there were fewer assets at stake in Bodine-Shah, the principles are nonetheless the same. I have found no case establishing a rule, or even a presumption, that reapportionment is not available when the parties have substantial assets to divide. Whether assets should be reapportioned is a fact-specific inquiry, governed by the factors set out in s. 65(1) of the Family Relations Act. Those factors are not displaced in high value cases or in cases where there may be a claim for indefinite spousal support.

In conclusion high net income and asset cases require a highly skilled BC High Income Support Lawyer. call us toll free across Bc at 1-877-602-9900 before it is too late.

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Many BC family law clients who separate or divorce after lengthy marriages have employment pensions whether defined benefit pensions or defined contribution pensions. These BC family pensions are often more valuable than all of the other assets of both spouses combined and we are shocked to see how often mistakes are made by spouses who fail to protect their financial future by getting their fair pension entitlement upon relationship breakdown.

BC Family Pension Division Lawyers

Don’t Make A Mistake On BC Family Law Pension Division

All to often we see people foolishly waive claims to pension benefits, forget about BC pension survivorship rights, or worse still erroneously rely on contribution statement values to decide what the BC family pension is worth.

BC Family Law Pension Division cases require a skilled lawyer familiar with the pension provisions of our BC family law legislation and our BC and Federal pension division legislation. Part 6 of the Family Law Act explains how BC family law pension division now works in BC.

Every BC Family Law Pension Division Case Is Unique

Every family case is different and it only makes sense that you obtain legal advice conceding pensions which in long marriages can be worth over $1,000,000. The seasoned lawyers at MacLean Law routinely protect our clients pension rights and we can protect yours too.

In the recent BC Court of Appeal decision of Tarr v Tarr the BC Appeal Court allowed an appeal on the issue of a poorly worded separation agreement that was found to have waived entitlement to survivorship benefits by the trial court. The Appeal court reversed the decision and awarded the survivorship benefits to the wife saying pension legislation has specific rules to waive claims to pensions.  The Court concluded these rules were not followed nor was a vaguely worded separation agreement sufficient to waive the wife’s claim to these valuable pension survivorship rights.

The official court summary states:

The defendant, Ms. Tarr, was the named beneficiary of the survivorship interest in Mr. Tarr’s pension at the time of the latter’s death. In 2002, Mr. Tarr retired and elected to name Ms. Tarr his beneficiary under his 100% joint life pension plan. The Tarrs subsequently signed a Separation Agreement in 2007 wherein they affirmed that each would retain “for his or her own use absolutely, free of any claim by the other… pension and pension rights”. The plaintiff, as executor for Mr. Tarr’s Estate, sought and received a declaration in the BC Supreme Court that survivor benefits paid to the defendant Ms. Tarr were to be held in trust for the Estate, on the basis that Ms. Tarr’s interest in those benefits had been waived by the Separation Agreement. Ms. Tarr appealed the order.

HELD: The appeal is allowed.

Both the BC Family Relations Act and Pension Benefits Standards Act (‘PBSA’) provide protection for the survivorship interest of a spouse in a plan member’s pension. The terms of the PBSA confirm that upon pension commencement, the survivorship interest in a member’s pension becomes irrevocably vested in the spouse. Thus, as of the date of pension commencement, the spouse has a vested right to survivor benefits. In order to effectively ‘waive’ such a right in a separation agreement, the language used must be unequivocal in recognition of the “super-priority” conferred by the legislation. Far from providing an effective waiver in this case, the Separation Agreement served to confirm the pension rights owned by each party, including Ms. Tarr’s right to the survivorship interest at issue.

BC Family Law Pension Division Is Complex

The following extracts from the decision show how technical BC Family Law Pension Division cases can be and why you need skilled legal representation to protect yourself in the later years of life.

[68]         The accrual of pension benefits is usually a significant matrimonial asset, and the entitlement to a survivorship benefit can often be critically important to the designated recipient. As the authors of the 2013 BCLI Report noted:

As can be expected, cases concerning this issue involve a detailed consideration of what was intended under the agreement or court order. The survivor benefits usually constitute an extremely valuable asset. So it is important that a former spouse not accidentally waive entitlement to this benefit. [At 80.] [69]         It is clear the Legislature has consistently intended to protect spousal interests in pensions and, at least in the context of a waiver of those rights under the Pension Benefit Standards Act, intended that a waiver could only be effected in prescribed form and within a prescribed time.

Call us toll free at 1-877-602-9900 across BC if you have concerns over BC Family Law Pension Division entitlements and valuation. 

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Our BC child support lawyers are frequently asked how child support is determined for a child over the age of majority when they are pursuing post-secondary education. How can we encourage a child to succeed in a competitive society and help them start to become independent?

Spencer MacLean, MacLean Law child support lawyer

• What is the child’s own obligation under these circumstances to contribute to their schooling?
• Do they need to pursue their studies full-time?
• Should they get a job in the summers and during the school year?
• Do they need to maintain a certain grade average to get child support?
• What details must they provide to the paying parent and the Judge hearing the case to obtain child support?

BC Over Age Of Majority Child Support Is Complex 

Our BC child support lawyers would be pleased to answer these questions for you at any of our 4 offices located in Fort St John, Kelowna, Surrey and Vancouver. BC Over Age Of Majority Child Support is a topic that the Canadian Government seeks your input on.

Recent BC Decision Sets Out Principles For Adult Child Support

In the recent BC Over Age Of Majority Child Support case of  Gasparini v. Gasparini the BC child support judge dealt with a child who was taking only 1 course per semester instead of the normal 4 or 5. The child was found not to be entitled to support by the Judge who stated:

[46]         In my view, after considering the Farden factors and all of the particular circumstances of this case, Giovanna is not a child of the marriage for the purposes of the Divorce Act.  She has restricted her studies to one online course in each semester. Further, the respondent has not established that Giovanna suffers from a learning disorder that would justify limiting her part-time studies to one course per semester.  I have found that Giovanna is capable of working full-time and fulfilling the requirements of a single course in each semester.  Giovanna has demonstrated that she has the academic ability to pursue a career in human resources.  However, it is unreasonable that she do so indefinitely and at the rate of only one course per semester. [50]         An adult child enrolled in post-secondary studies whose educational pursuits are reasonable may qualify for continued support as a child of the marriage. For example, in Harrison v. Harrison, 2014 BCSC 1220, Madam Justice Donegan found that a 20-year-old enrolled in two or three university preparatory courses per term, and who had been accepted into the university’s Bachelor of Science program, was a child of the marriage. Each case must be assessed on its own circumstances. [51]         In the event that Giovanna were to increase her level of part-time study or become a full-time student, then her status as a child of the marriage may be revisited, together with the question of her contribution, and that of her parents to  the cost of her education and living expenses for post-secondary studies.  However, I will emphasize that an adult child who claims expenses for attendance at a post-secondary educational institution has an obligation to provide information to establish active participation in the program, including evidence of registration and her progress in the program, such as courses taken and grades obtained: Lewis v. Correia, 2014 ABQB 314 at paras. 17-20.  To this I will also add that generally an adult child who claims support while pursuing post-secondary education should also provide evidence of the costs and anticipated duration of her studies, and particulars of her capacity to contribute to those costs, whether through employment, savings, student loans or other funding.

We know you want your child to do well in life and they are entitled to fair support to allow them to pursue a sound educational program. The adult child also must make their best efforts to contribute to their own support and to do well in school. Call us toll free if you have child support questions 1-877-602-9900.

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MacLean Law Supports Vancouver Pride Week

Vancouver just celebrated another successful Pride Week, including the Pride Parade that brings a fantastic celebration to the streets of Vancouver. Congratulations to the group from The Canadian Bar Association – Sexual Orientation and Gender Identity Conference (SOGIC) who organized the Legally Proud float. Matt Ostrow of MacLean Law is part of this group who works hard to create awareness and promote diversity in the legal profession.

“SOGIC represents people from all walks of life in our diverse legal profession and we are thankful for the incredible amount of support we receive from the Canadian Bar Association and the profession as a whole,” Matt explains.

MacLean Law is pleased to sponsor Matt and the Legally Proud float.

MacLean Law becomes an Art Advocate with The Fort St. John Arts Council

Our Family Law office in Fort St. John recently became a founding member of the Arts Advocates, that help support the mission and goals of the Fort. St. John Arts Council.

The Fort St. John Community Arts Council works to improve the community by supporting and developing the arts and culture through outreach, networking, advocating for arts, promoting art in public spaces and education initiatives.

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How should a court assess where a child should live after parents separate? If parents live in the same city after separation, the move of the child to a new home won’t seriously impair one parent’s ability to see their child. But what if the move is to a city or country far away?

Kelowna Child Relocation Mobility Lawyers

Should parents always be allowed to move away with a child or never be allowed to do so? Given people need to move for jobs, careers, education medical needs and family support how do BC judges and Kelowna family lawyers determine when Kelowna child relocation and Kelowna child mobility or move away moves are allowed.  What types of orders can a court make in such child move away cases?

The recent Kelowna Child Relocation and Child Mobility case of McIntosh v Kaulbach allowed a mother’s appeal of a court order that required her to move from Kelowna back to Chetwynd in northern BC. The official BC Court of Appeal summary states:

Summary:

A trial judge made an order under the Divorce Act ordering a mother to relocate with the child of the marriage from Kelowna to Chetwynd where she had lived during a short marriage and where her ex-husband continued to reside. Appeal allowed. Having concluded that the child’s best interests were for the mother to have custody of the child and the father was not in a position to have custody, the judge erred in principle in ordering the mother to relocate.

Lorne MacLean, QC, our founding partner, handles the toughest child custody guardianship and parenting cases and was winning counsel in Canada’s leading child custardy case of Young v. Young.

Kelowna Child Relocation Mobility Rules

Here are the key portions of the judgment

[18]        In S.S.L. v. J.W.W., 2010 BCCA 55 at para. 24, this Court set out four possible scenarios for a court to consider when one parent wishes to move with a child. S.S.L. differs from the facts at hand because, in that case, both parties had agreed they should have joint guardianship and joint custody: the dispute was over the children’s the primary residence. Both parents had been living in the Victoria area, but the mother wished to move to London, Ontario. This Court held that the decision before it should be approached as follows: [24]      In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one.
[Emphasis added.] [19]        The Court noted that, by approaching the question as to the best interest of the children by incorporating a parent’s decision to move, the framework “takes into account the court’s inability to order a parent to stay or move and the unfairness of preferring the obstinate over the more flexible”: para. 30. [20]        Returning to the case at hand, in my opinion, the judge made an order that is inconsistent with the principles articulated in both S.S.L. and Falvai. More particularly, he committed the same error in principle as the judge had made in Nunweiler. [21]        It is important to remember that the trial judge here dealt with the circumstances as they existed at the time of trial. The issue for the trial judge was first to determine, from the point of view of the child’s best interests, which parent should have custody of the daughter: Ms. McIntosh in Kelowna or Mr. Kaulbach in Chetwynd. If he had found that the daughter’s interests would be best served by a joint custody arrangement, then he would have had to decide the city in which that should take place. Moreover, he expressly rejected granting Mr. Kaulbach custody. This was due to the impracticalities of his work schedule as well as his temperament. Once he decided Ms. McIntosh should have sole custody, he erred in failing to respect Ms. McIntosh’s decision to choose to live in Kelowna or, in the words of S.S.L. his inability to order a parent to move or stay. [22]        Having made the decision that it was in the daughter’s best interests that the mother have custody and that the father would not have custody, it was not open to the judge to order the mother to relocate to Chetwynd. In my view, such an order is substantively different from orders, for example, about where a child will live which may indirectly affect the mobility rights of a parent who may have to choose whether to give up a possible move in order to remain close to a child. [24]        I note that the trial judge’s decision to order Ms. McIntosh to move was based in part on a desire for Mr. Kaulbach to live in the same community as his daughter. While ss. 16(10) and 17(9) of the Divorce Act stipulate that a child should have maximum contact with both parents, this is an important but not an absolute requirement. As the Court stated in Gordon: [25]      The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child. [25]        It is clear the trial judge found that the daughter’s interests would be best served if she continued to be in her mother’s custody. Ms. McIntosh’s decision to live in Kelowna is entitled to respect, as there is no evidence of an improper motive.

You can meet with Audra Bayer at our Kelowna office to discuss your Kelowna Child Relocation Mobility case by clicking here. We have 4 Kelowna Child Relocation and Child Mobility family law offices across BC and you can call us toll free at 1-877-602-9900. 

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Lorne MacLean, QC, the founder of our firm, has continually championed a BC spousal support and BC child support approach that encourages both spouses to work to their fullest capacity to earn income. MacLean believes Canada as a nation will be weaker if support paying spouses quit their jobs and/or support receiving spouses refuse to look for work. What happens when Vancouver Spousal Support Self Sufficiency disputes come before the courts?

Lorne MacLean, Q.C. High Income BC Spousal Support Lawyer

 Vancouver Spousal Support Self Sufficiency Issues

• Given the uncertainty of the modern economy is it wise for a receiving spouse to refuse to retrain?

• When parties separate after a long marriage, is the spouse who was the homemaker entitled to stay at home forever and receive spousal support or should they get a job?

• Is it realistic for a spouse who has been out of work for several years to immediately get a well paying job?

• Can a court attribute or impute an income to lazy or recalcitrant spouses?

Vancouver Spousal Support Self Sufficiency

All of these issues were considered in the Supreme Court of Canada case of Leskun v Leskun where Lorne MacLean, QC acted for the paying spouse. Maclean’s Leskun case was cited in the recent BC Court of Appeal decision of Jendruck v. Jendruck where our BC Court of Appeal overturned a trial court decision that failed to impute or attribute income to a wife who was running a daycare that made almost no profit.

Our BC Appeal court focused on the duty of a spouse to attempt to achieve self sufficiency and to work to their capacity and concluded that the Divorce Act requires a party to take reasonable steps to contribute to his or her own financial support. Our BC Appeal court  held the judge erred in declining to impute income to the wife.

 [11]         As has been observed many times, the application of these provisions engages the discretion of the judge, and requires a balancing of the objectives and the factors in the circumstances before the court. In Rogers v. Rogers, 1999 BCCA 238, 67 B.C.L.R. (3d) 315, Justice Esson thoughtfully discussed two leading cases from the Supreme Court of Canada: Moge v. Moge, [1992] 3 S.C.R. 813, 43 R.F.L. (3d) 345; and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 44 R.F.L. (4th) 1. Different models are engaged for the determination of the amount and duration of a spousal support order, depending on the circumstances of the parties and the circumstances of the marriage. At para. 36 of Bracklow,referred to by Justice Esson, Justice McLachlin (now C.J.C.) said:

In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse … the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party”: Ross v. Ross (1995), 168 N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

[12]         Earlier, at para. 32, Justice McLachlin had stated:

… It is critical to recognize and encourage the self-sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships. On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support.

[15]         In McEachern v. McEachern, 2006 BCCA 508, 62 B.C.L.R. (4th) 95, Justice Prowse observed as to the responsibility to seek remunerative employment: [43]      The primary objectives of a support order in this case, therefore, must be to relieve, to the extent possible, the economic hardship suffered by Ms. McEachern as a result of the marriage breakdown (s. 15.2(6)(c)), and “in so far as practicable” promote her economic self-sufficiency within a reasonable period of time (s. 15.2(6)(d)).  In that regard, the following passage from this Court’s decision in Tedham v. Tedham, [2005] B.C.J. No. 2186, 2005 BCCA 502 (at para. 33) is apt:

… s. 15.2(6)(d) of the Act does not require self-sufficiency, but simply seeks to promote self-sufficiency “in so far as practicable”.  In determining what is practicable, regard must be had to all of the circumstances, including the age and gender of the spouse, her/his skills and education, or lack thereof, the opportunities for retraining, and the realistic prospect of the spouse being able to find not just a job, but one which enables her/him to become self-sufficient, which may be quite a different matter.

[16]         Consistently, the courts have affirmed and applied the objective in the Divorce Act of striving for economic self-sufficiency, while recognizing that attainment of full economic self-sufficiency may not be practicable. To the degree effort could be made by a party to contribute to his or her own support in the circumstances, and effort has not been made, the courts have said the consequences of that party’s choice falls on them. The courts do not, and cannot, say a person must take up any particular employment. It is a free society in which people may choose how to spend their hours. However, where the effort to contribute to one’s own support is deemed insufficient in all the circumstances, the court will place the consequence of the inadequate effort on the person whose choice it is, and may do so by the vehicle of imputing income for under-employment.

In the end result the court attributed a very modest income of $12,000 per year which lead to a nominal reduction in spousal support. The lesson learned is that each spouse should be encouraged to earn income and advance their careers in a relationship. If a spouse is out of the work force and sacrifices their career support could be substantial and long term.

Vancouver Spousal Support Self Sufficiency arguments  are contentious issues. Our top rated BC spousal support dispute lawyers can protect you but only if you call us at 1-877-602-9900.

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How Does BC Excluded Property Work?

Our new BC Family Law Act uses a family property and excluded property model that involves less judicial discretion particularly when identifying and dividing  family property or excluded property. Lorne MacLean, QC heads our wealth and asset protection and BC excluded property legal department. Our firm is BC’s largest and we have 4 offices across BC to assist you.

Vancouver BC excluded property and wealth protection lawyer Lorne MacLean, QC

BC Family property includes all real and personal property owned by one or both spouses at the date of separation unless the asset in question is excluded, in which case only the increase in the value of the asset during the relationship is divisible.

BC excluded property includes:

• property acquired before or after the relationship;

• gifts or inheritances;

• damage awards and insurance proceeds with some exceptions; and

• some kinds of trust property.

What Happens If I Buy Something New With Excluded Property?

Under our former act the use to which what we now call “excluded property” was put and whether it was registered in joint names had a huge impact on whether it was shareable or not. Under section 85 of the Family Law Act, excluded property also includes property that can be traced to other property meaning where monies or assets are sold or converted to buy a new asset the starting amount of excluded property is still excluded.

What If BC Excluded Property Drops in Value?

Only the gain on excluded property is shared in BC but what happens if the excluded property drops in value? Is the starting or ending value excluded? Can the shortfall be deducted from other property upon separation?

In the August 2014 decision of Remmem v Remmem, the second case on excluded property decided in BC, the judge held that your exclusion is limited to the depreciated value of the assets whose value has declined.

[28]         There is one decision in British Columbia considering the application of s. 85 to property that has depreciated since the time it was brought into the relationship. In Asselin v. Roy, 2013 BCSC 1681, Harvey J. concluded the value of excluded family property which has depreciated could not be recovered from other family property. In Asselin at para. 222, he rejected the claimant’s argument that she should receive a credit for an investment made in real property which had depreciated in value at the time of the separation:

In my view, s. 85 doesn’t provide for a tracing of otherwise excluded funds beyond the asset which was acquired through the disposition of her inheritance. Just as the claimant is entitled to no consideration for monies expended by her from the inheritance on matters such as travel or other disposables, if there is no equity or insufficient equity in 80 St. Ninian to repay her original investment, she cannot look to other family property to make up the difference.

[29]         …I have fully considered the arguments presented by counsel but whether I treat this issue as determined by Asselin or not, I would arrive at the same conclusion: where excluded property has depreciated in value since one party brought it into the relationship, that party has no ability to look to other family property to make up the loss in value.

What If My Excluded Property Was Put Into Jointly Owned Property?

The legal elephant in the room for BC family lawyers was what happens when excluded property is used to acquire property in the spouses’ joint names such as a house, a bank account, or an investment account or used to pay off joint debt. Worse still, what if for asset protection or tax planning reasons excluded property is used by the spouse who received it to buy an asset solely in the other spouse’s name? Tax planners and investment advisors routinely recommend putting assets in joint names to income split or to avoid probate taxes. This simple act might have dire consequences for the spouse who received the excluded property.

Lorne MacLean, QC handles cases where the excluded property can total in the tens of millions of dollars. The joint ownership issue was the subject of much debate until recently. In both these cases the registration in joint names was found to have no impact on reducing the exclusion to the spouse who obtained the excluded property. Use and intent were found to be irrelevant under our new family and excluded property division regime. The Remmem and Asselin case represent early decisions and we will need to see if there are appeals to higher courts on this critical issue. Here is what the court in Remmen held:

 [48]         This issue considers whether the transfer of excluded property into joint property reduces the value of the exclusion for the spouse that brought the property into the relationship. I have concluded that the purchase of property in joint names using the proceeds of excluded property does not reduce the value of the exclusion. The property provisions of the FLA are intended to be a complete code so that there is no need to examine the intention of the parties at the time of a transfer of excluded property to joint tenancy. To come to the opposite conclusion would bring uncertainty and a level of inequality into a property division structure that was intended to treat married and unmarried spouses equally and to provide for a greater level of certainty.

[51]         These issues would have two significant consequences. First, the apparent simplicity and certainty of the property division scheme would be lost. Exclusion would depend not only on whether property was owned prior to the commencement of the relationship or brought in by way of inheritance in the course of the relationship, but on other circumstances. The new scheme is easier to apply if subsequent transactions only have to be examined to see if property is derived from the excluded property. If the court also has to look at subsequent transactions to determine if property was gifted, it would have to consider the parties’ intentions in transactions which may have taken place many years before trial. This would be a difficult exercise which would require considerably more court time. Further, the amount of the exclusion would be different for married and unmarried spouses, a result that does not appear to have been intended by the legislation. The amount of the exclusion might also be different for married spouses in similar situations, depending on the conclusions arrived at as to application of the presumption of advancement. [52]         When I consider these difficulties, I conclude that the tracing provisions in the FLA, at least when applied to the circumstances in this case, are to be applied without considering or applying the presumption of advancement between married spouses. In other words, none of the excluded property – the fair market value of the Greaves Road property in October 1990 – was gifted to Ms. Remmem when the Middle Point property was placed in joint names. Mr. Remmem remains entitled to the full value of the exclusion of $65,000.

If you have questions on a BC Excluded Property and BC family property division dispute it pays to speak with Lorne MacLean, QC. Contact him now so you can begin to resolve matters and move forward with your life.

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BC Family Law Significantly Unfair And BC Unequal Property Division 

MacLean Law’s  BC Unequal Family Property Division and Significantly Unfair Lawyers Can Help

The new BC Family Law Act was designed to have simpler and clearer rules to allow people to reach a compromise in their family law disputes. Our MacLean Law lawyers can help you resolve family property matters quickly and fairly.

One of the new rules for BC property division has created a higher threshold for unequal division of family property. Our BC family and excluded property division rules changed on March 18, 2013 and judges  and lawyers are still figuring out how the new property division law works.

New Case Explains BC Family Law Significantly Unfair Test and How It Relates To Unequal Property Division

The critically important BC family property division decision of Remmem v. Remmem, 2014 BCSC 1552 dealt with what significant unfairness means and when will such significant unfairness justify unequal division of family property.  The case also dealt with how excluded property is treated when used to buy or acquire property registered in joint names.

When Does Bc Family Law Significantly Unfair Lead to One Spouse Getting More Than Half the Family Property?

There is a significant difference in how the courts dealt with unequal division of family assets under our old legislation and how unequal division is treated under our new B.C Family Law Act.  The change in the test was deliberate. The test is much tougher today than in the past when people routinely sought more than half of the BC family property upon relationship breakdown. The hope is by limiting cases where unequal division occur more cases will settle faster because the rules will be more certain.

As outlined in the B.C Ministry of Justice “The Family Law Act Explained” the new test is:

Section 95 Unequal Division By Court Order

1. Section 95 sets out the factors for the Supreme Court to consider in ordering an unequal division of family property, family debt or both.
2. It limits judges’ discretion to divide family property unequally between spouses
3. The section changes the threshold for dividing family property unequally from whether it would be “unfair” not to do so to whether it would be “significantly unfair” not to do so.
4. It is intended to create a higher threshold and make the test for unequal division stricter.
5. Judges still have some flexibility to take into account a spouse’s unique circumstances and divide property unequally, but may only do so based on a more limited basis than under the Family Relations Act.
6. This section allows a court to use an unequal division of property to compensate for situations where spousal support is insufficient to meet the spousal support objectives. The Family Relations Act was silent on how property division should interact with spousal support; while property division and spousal support are separate issues in law, in practice, they overlap.

Key Court Case Sets the Bar High For Unequal Division of Family Property When Applying Significantly Unfair Test

In the August 2014 decision Remmem v. Remmem, 2014 BCSC 1552, Mr. Justice Butler held that BC’s new Family Law Act intends equal division of family property to prevail in all but the most unusual circumstances. Unequal division of family property occurs only where significant unfairness would occur if property is divided equally between the spouses:

[43]        It is only at the very end of the exercise that equitable considerations come into play pursuant to s. 95. After determining the full extent of the family property, the court must go through the notional exercise of dividing that property equally. The court must consider if equal division would be “significantly unfair”. If it would, then it is possible to order an unequal division. [44]        The FLA provisions granting the court a discretion to order other than an equal division are very different from the provisions in the previous legislative scheme. Pursuant to s. 65(1) of the Family Relations Act, R.S.B.C. 1996, c. 128 (the “FRA”), courts had a discretion to divide family property in unequal shares if the court found that the division of property (pursuant to agreement or the provisions of the FRA) would be unfair having regard to the factors set out in that section. The first and obvious difference between the discretion given under the FRA and the discretion given in Part 5 of theFLA is that in order to exercise the discretion, it is no longer sufficient to find that a division of property is merely “unfair”. There must be a finding that the division of property pursuant to the statutory scheme is “significantly” unfair. The Concise Oxford English Dictionary defines “significant” as “extensive or important enough to merit attention.” Significantly is understood to mean more than a regular impact – something weighty, meaningful, or compelling. In other words, the legislature has raised the bar for a finding of unfairness to justify an unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2).

Stricter Test For Unequal Division Will Reduce Uncertainty For Family Property Division and Encourage Settlement

It is clear that the new act is designed to help parties settle their cases through negotiation, mediation and arbitration rather than proceeding to court. By making the exception for departing from the equal division of family property a stringent test, parties will no longer be tempted to routinely claim unequal division of family property in their favour when no unusual circumstances exist. The hope is that this will encourage people to save time and money on family law disputes but instead focus on moving forward with their lives.

If you have a family property dispute and have questions about whether your case meets the test for unequal division of assets based on significant unfairness, our skilled and experienced family law lawyers would be pleased to assist you.

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Recent BC Appeal Court Decision Restates Material Change Is Required For Varying  BC Child Custody Orders

Laurence Scott, MacLean Law Varying BC Child Custody Orders Lawyer

BC child custody cases are the most important cases we handle as BC child custody and child custody and parenting time variation lawyers. Many times BC family law clients are disappointed, if not distraught, over the court’s decisions regarding their children. Each parent sincerely wants what’s best for their children and each honestly believes their competing BC child custody and child parenting plan is the one the best promotes their children’s best interests. After an initial child custody and child parenting time order is made, what is the test for changing or varying the initial child custody and parenting plan and responsibilities decision? As we will see below the test must be a strict one to prevent endless re-litigation of the issue of child custody and parenting time and responsibilities. The test for Varying BC Child Custody Orders  is whether there has been a material change since the last order that if known then would have changed the result. The law is complex in this area and legal advice involving the most valuable asset of your relationship is key.

 BC Child Custody Orders Variation Requires A Material Change

The official Appeal Court Summary in this months L.S. v G.S.  child custody variation case dealt with a variation to reduce shared parenting to supervised time and reinstatement of equal and shared parenting time due to an episode involving a mother’s mental health episode followed by her recovery:

In 2011, a trial judge made an order for divorce and permitted the respondent mother to move the children with her to Israel. In April 2012, this Court allowed the appellant father’s appeal, set aside the mobility order made at trial, and ordered the children be returned to Vancouver. This Court also ordered joint custody with primary residence to the appellant and access to the respondent in Vancouver on a shared parenting basis, all under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and joint guardianship under the Family Relations Act, R.S.B.C. 1996, c. 128.

The appellant and children returned to Vancouver, and the respondent followed. The Supreme Court of British Columbia then varied the respondent’s access to order access on an “equal parenting” basis on a seven-day rotation.

When the respondent had an episode of her bipolar disorder, a judge made an “interim” order that replaced the respondent’s access with supervised access. When the respondent recovered, another judge varied the “interim” order and reinstated access on a three-day rotation between the parties, with conditions for the respondent. The appellant appealed.

A month later, the appellant brought various applications under the Family Law Act, S.B.C. 2011, c. 25, based on the respondent’s failure to return the children to Vancouver in accordance with this Court’s April 2012 order. The judge dismissed the applications. The appellant also appealed from that order.

The two appeals were heard together.

Held: As to the first appeal, the judge correctly narrowed the issue before him to whether there had been a material change in circumstances since the respondent’s admission to hospital in light of her recovery and unconditional release from hospital. It was open to the judge to find the respondent’s recovery constituted a material change in circumstances since her admission to hospital, and to reinstate access on an equal parenting basis, on conditions.

As to the second appeal, this case was not commenced, litigated, or concluded under the Family Law Act. This Court’s discretion to address new issues not previously raised is generally exercised sparingly and only where the interests of justice require it. It is not in the interests of justice for this Court to engage in the exercise of statutory interpretation required to resolve issues of jurisdiction not argued before the trial court.

Appeals dismissed.

Father Loses Appeal Of  Decision Varying BC Child Custody Orders

The trial judge had reinstated shared custody of the parties’ children putting in place safeguards regarding the mother’s mental illness:

[56]         As stated, the Schultes Order varied the supervised access order of N. Smith J., pronounced on October 22, 2013, and extended on October 30, 2013. The Schultes Order provided:

1.         The Orders of The Honourable Mr. Justice N. Smith pronounced on October 22, 2013 and October 30, 2013 are varied to the following extent:

The claimant [L.S.] may exercise parenting time with the [children] in alternating periods with the respondent of 72 hours duration, with the claimant’s access or parenting time commencing on Tuesday, December 24, 2013 at 3 pm and continuing for 72 hours thereafter until further order of the Court. Exchanges are to take place with the respondent at 3 pm at … Shopping Centre except if the exchange date is a school day, in which case the exchange will be at the [children’s] school at 3 pm.

2.         The claimant’s ability to exercise her parenting time is subject to the following further conditions:

a.      she is to maintain herself in a condition in which her mental illness is not likely to cause harm to herself or others and in particular to her children;

b.      she is to continue to attend upon Dr. Brigitta [sic] Donahue as her treating psychiatrist, and Kathleen Pennykid as her case manager, at the … Community Health Centre;

c.      the claimant’s attendances are to be as directed by Dr. Donahue and Ms. Pennykid, or either of them, but in any case not less than once every 2 weeks; and

d.      she is to continue to take all medication as prescribed and directed by her psychiatrist, and to provide such assurances to her psychiatrist as the psychiatrist may require from time to time to ensure her compliance with prescribed medication including blood tests.

3.         Costs are awarded to the claimant in the amount of $1000 inclusive of disbursement and taxes, and they may be set off against any outstanding costs that are owed by the claimant to the respondent.

[57]         Mr. Justice Schultes concluded he had jurisdiction to vary the supervised access order and that his variation order would be subject to further variation upon a material change in circumstances, as is any corollary relief order under the DivorceAct. He said: [7]        I will just say something about jurisdiction first. My initial impression when this hearing began was that I was being asked to make an interim order pending Smith J.’s resolution of the parenting time issues. However, counsel for L.S. submits that s. 17 of the Divorce Act is actually what applies here. That is, I should characterize Smith J.’s order as a suspension of the previous order, as that term is used in s. 17(1). I am now being asked to vary that suspension pursuant to the same section, to provide for additional access. Under this analysis, if I grant the application I would not be making an interim order, but rather an additional variation, which will stand until a further material change of circumstances is shown. [8]        This distinction is important to G.S., because he wishes to have the opportunity to argue against any order that I may make increasing L.S.’s parenting time when he gets before Smith J. again in January. He had his own application before me as well, which I have adjourned to January, on the basis that what Smith J. gave leave for another judge to do was deal in his absence with the restrictions that he had made to the parenting time specified in Burnyeat J.’s order, and not to consider other issues. [9]        I had some initial hesitation on this point, because of course a material change in circumstances is meant to be something that was not in the contemplation of the judge who makes the order that one is trying to vary. I wondered whether Smith J. envisioned a sufficient improvement in L.S.’s condition that some modification of his order to increase her parenting time was inevitable. On reflection however, I think that while such an improvement must have been a possibility or he would not have granted leave to bring an application in his absence, it was not sufficiently definite or predictable to qualify as a matter within his contemplation that precludes a further application based on it now. The point of requiring a material change in circumstances to vary an order is to prevent endless re-litigation of the same or similar facts. I do not see how that value is undermined by hearing this application, because it is not clear what order Smith J. could have made to anticipate accurately what has since occurred. [10]      So, for G.S. to revisit anything that I now order, he will have to show a material change in circumstances with respect to issues arising from the mental condition of L.S. Other matters relating to the best interests of the children that have not been argued before me may of course be raised before Smith J.

BC Court of Appeal Reiterates That A Material Change Is Required To Vary Child Custody Order

[77]         G.S. relies on Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 13, which decided as a threshold matter that before entering on the merits of an application to vary a custody order (or access order), a judge must be satisfied of a material and unforeseen change in the circumstances of the child and/or the ability of the parents to meet the needs of the child.

[78]         I see no merit to G.S.’s contention that L.S.’s recovery from her manic episode was not a material change in circumstances. Mr. Justice Schultes reasonably considered that an improvement in her condition was not sufficiently definite or predictable to qualify as being within the contemplation of N. Smith J. when he earlier varied her equal access to supervised access. Thus, her recovery did not preclude L.S.’s variation application.

[79]         The judge agreed with G.S. that the possibility of L.S. relapsing while she had care of the children was a serious concern. But having considered it, he said, “I also have to look at what she has committed to do in the future, and judge whether that is sufficient to address the Court’s concerns” (at para. 34). [80]         He concluded: [35]      I am satisfied that her recovery to date does constitute a material change in circumstances which, if known at the time of the suspensions, would have resulted in a different order. In fact there might not have needed to be any order suspending parenting time, or there would have been a less restrictive order than what resulted. [36]      I am going to put conditions in place to govern L.S.’s parenting time, and there are going to be some additional conditions attached to it that relate to her own conduct. I want to make it clear that the Court’s jurisdiction to do so arises solely in the context of her exercising this parenting time. She is not under the Court’s jurisdiction for any other purpose. What I am ordering her to do is as a precondition to exercising her parenting time and not some freestanding effort to govern her conduct in the community. [37]      I will vary the suspension orders of Mr. Justice Smith to this extent: L.S. may exercise parenting time with the [children], in alternating periods with the respondent of 72 hours’ duration. Her access or her parenting time beginning tomorrow at 3:00 p.m., and continuing for 72 hours thereafter, with the subsequent exchange with G.S. taking place at 3:00 p.m. at that point, and thereafter for periods of 72 hours until further order of the Court. The exchange point will be at the … shopping centre. [Emphasis added.]

Mr. Justice Schultes imposed strict conditions upon L.S.’s access to the children, as reflected in his order replicated above.

[81]         Gordon v. Goertz also decided that once a material change in circumstances had been established, the court must embark on a fresh inquiry described as follows:

47.       … The parent seeking the change bears the initial burden of demonstrating a material change of circumstances. Once that burden has been discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof.

In the end all of the husband’s appeal relief was dismissed. If you have a Varying BC Child Custody Orders case contact our top rated child custody variation lawyers at any of our 4 offices across BC located in Fort St John, Kelowna, Surrey or Vancouver, BC.

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Our new BC Family Law Act has a focus of protecting spouses and their children as well as other family members from family violence. In cases where family violence occurs there can be criminal penalties, protection orders and even monetary damages for spousal assault. These civil claims for money compensation are called BC spousal assault damages or spousal assault tort cases.

BC Spousal assault Damages lawyer Jeff Zilkowsky

Damage claims for spousal assault are usually heard together with support, custody and property relief. Our experienced family lawyers can help protect you  from and and compensate you for BC spousal assault injuries.

BC Spousal Assault Damages Awards Depend On Severity of Assault

In the recent BC spousal Assault  Damages case of Dhillon v Gaba the court dealt with a spousal assault claim by a wife against her husband where:

[3]             The assault alleged by the claimant is particularized as follows:

1. He threw shoes at her.
2. He pushed her against the wall so that her head hit the wall and he then grabbed her arm tightly so that it hurt.
3. He tried to choke her and she hid in the bathroom as she feared him.
4. He pushed and slapped her. He head butted her. He pushed her into a cupboard. He tried to choke her. He grabbed her right breast and dug his nails in and did the same to her buttocks.
5. He pulled her hair, slapped her, hit her face and choked her. He hit her head against the headboards of the bed.
6. He tried to force her to have sex with him.

How Does the Judge Decide The Right Money Award For BC Spousal Assault Damages Cases?

In reviewing the law and assessing liability (did the wife prove it happened) and quantum (what is the right amount of money to compensate her for her injuries) the court will review the facts of the assault to see if the assault happened on a balance of probabilities and then through the law and prior cases of spousal assault which the Court takes guidance from:

[72]         The tort of battery is a form of trespass against the person. It is aimed at protecting the individual’s personal autonomy. It consists in the direct, intentional application of force to another person’s body in a manner that, in the view of a reasonable person, is harmful or offensive: see Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 S.C.R. 551.

[73]         Despite the respondent’s denials, I am satisfied on the evidence that the claimant was assaulted in the manner she described. The respondent’s conduct constitutes the tort of battery.

[74]         I turn then to the assessment of damages. The claimant does not claim for past or future wage loss or for special damages. She testified that she made some attempts to obtain counseling, but I find that she did not pursue that option with vigour. She testified that she suffered some pain and discomfort, but I find that it was relatively minor and short-lived. She had some relatively superficial bruising, but it quickly faded. I find that the primary effect on the claimant from the respondent’s conduct was not pain and suffering, but rather, humiliation and embarrassment. She is entitled to general damages for the violation of her personal autonomy. [75]         Counsel for the claimant referred to a number of cases to illustrate the possible range of damages for spousal assaults. These include:

Megeval v. Megeval, 1997 CanLII 3721 (B.C.S.C): Total damages $139,150;

H. v. H., 1998 CanLII 4129 (B.C.S.C.): Total damages $38,875;

L.N.S. v. W.M.K., 1999 ABQB 478: Total damages $19,000;

Valenti v. Valenti, [1996] O.J. No. 522 (Ont. Ct. J. (Gen. Div.)): Total damages $15,000;

K.R.W. v. S.A.W., 2003 BCSC 522: Total damages $10,000;

Wandich v. Viele (2002) 24 R.F.L. (5th) 427 (Ont. S.C.J.): Total damages $5,000;

R.Y.W. v. D.W.W., 2013 BCSC 472: Total damages $2,000;

Kovacic v. Kovacic, 1998 CanLII 1083 (B.C.S.C.): Total damages $2,000.

[76]         The first five of these cases are of little assistance, as the facts are so far removed from those in the case at bar. These five cases involved much more serious assaults, which caused much greater harm to the victim. For example, in Megeval, the victim was left with a permanent disability resulting in significant past and future wage loss. In H. v. H., the victim was left with a permanent deformity. In L.N.S. v. W.M.K., the assaults continued over a period of several years, causing the victim to contemplate suicide. In Valenti, the victim’s face was so bruised and swollen that both her eyes were swollen shut for a few days. Her husband was convicted of assault causing bodily harm and sentenced to five months imprisonment. In K.R.W. v. S.A.W., the victim alleged that she was stabbed in the groin with a fork, threatened with knives, and forced to have intercourse when she was injured in childbirth. The trial judge found that there was more than one assault, and one of them consisted of “pulling her to a standing position by her hair, dragging her across a coffee table, pushing her in a bedroom, causing bruises to her legs and abdomen and tearing loose at least two pieces of her hair [leaving] her with a bloody, exposed scalp in at least two places.” [77]         The cases most similar to the case at bar are Kovacic and R.Y.W. v. D.W.W. In the latter case, Sigurdson J. observed that the most significant effect of the battery was that it caused the victim to be frightened and humiliated. As in those cases, I award the claimant here a total of $2,000 for general and aggravated damages.

 Family Violence cannot be tolerated. If you are injured or if you have been falsely accused of spousal assault you need to speak to a MacLean Family LawLawyer today. Call us toll free across BC at 1-877-602-9900.

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Annual Correction of BC Spousal Support

Our top rated BC spousal support lawyers are always updating our clients on critical developments in spousal support. Jeff Zilkowsky of our Surrey office is a frequent writer on family law topics and he shares a radical development in spousal support affecting BC family law clients. MacLean Family Law has 4 offices across BC and we know spousal support inside and out.

BC spousal support lawyer, Jeff Zilkowsky

A very interesting case about BC spousal support came to my attention recently: Guttmann v. Guttmann, 2013 BCCA 78.   It is particularly interesting because it may represent a significant change in how the courts deal with BC spousal support awards.   More specifically, it is the presumably the first Court of Appeal decision in Canada that upholds annual, income-based readjustments of BC spousal support payments.

What is BC Spousal Support?

Before I get into the facts of the case, though, it is important that I briefly describe ‘spousal support’, as it is a very complicated (and heavily litigated) area of the law.

To begin, spousal support is, quite simply, a payment from one spouse to another.  But, it isn’t an automatic payment.   Instead, there are several hurdles that need to be cleared before someone can receive spousal support.

Entitlement to BC Spousal Support

First, in order to receive any payments, the parties must have been married or lived in a marriage-like relationship for at least two years.

The next step is to consider is whether or not there is ‘entitlement’.  In other words, a person who wants to receive spousal support payments must show the court that they are entitled to it.

There are two ways (i.e. grounds) in which a spouse can be entitled to spousal support:

1. Compensatory Grounds; and
2. Non-Compensatory Grounds.

Compensatory Spousal Support

Under the compensatory grounds, a spouse is entitled to spousal support if they agreed (even implicitly) to not maximize their earning potential and instead, for instance, raise the children and/or accept a lower paying (but part-time) job.  At the same time, then, the other spouse is able to leave the home and pursue their employment potential.

Non Compensatory Spousal Support 

Under the non-compensatory grounds, a spouse is entitled to spousal support if one spouse (truly) needs the money and there is a big difference between the incomes of the two spouses.  In this case, the court will say, “There is a social obligation that the disadvantaged spouse be supported by the other spouse who is earning more money.”

If there is entitlement, then the court will require one spouse (the “payor spouse”) to pay spousal support to the other spouse (the “recipient spouse”).  The amount of money payable in support will typically be dependent on the incomes of both spouses and the length of the marriage.   Put simply, the longer the marriage and the larger the difference in incomes between the parties, the more money the payor spouse will need to pay to the recipient spouse.

Novel BC Court Of Appeal Spousal Support Decision

Now, moving along to the case, here are the facts of Guttmann v. Guttmann:

1. The husband and the wife were married for 22 years.
2. The husband was a long term employee of a company and earned the following incomes:
3. 2009: $54,337.00;
4. 2010: $51,865.00; and
5. 2011: $78,405.00, including $20,150.00 in bonuses.
6. The husband was not working full-time in 2010.
7. In the first four months of 2012, the husband already earned $31,134.00, including $13,150.00 in bonuses.
8. There no evidence that the husband would not continue to earn bonuses (in the future).

The Chambers Judge who heard this case (initially) made the following important decisions/findings of fact:

1. For the purpose of assessing spousal support payments, the husband earns $70,000.00/year and the wife earns $31,700.00/year.
2. Spousal support was reviewable annually.

Now, the husband did not agree with the Chambers Judge’s decisions and appealed those decisions to the B.C. Court of Appeal.

Here are the important grounds of appeal that the husband made (as well as the issues with those grounds):

1. First, the judge assessed the husband’s income at $70,000.00.
2. You may be thinking, “That was never an amount that the husband earned”.
3. And, that’s correct.
4. The husband, in his appeal, argued this, as well.
5. However, the Court of Appeal indicated that this number was actually favorable to the husband because if he continued to ‘keep pace’ with his 2012 earnings thus far, his income would exceed $100,000.00.
6. Also, instead of averaging the last three years of taxes, which is often done when a payor’s income varies from year to year, the Chambers Judge viewed his 2011 income as the best indicator of his future income and so assessed his income at $70,000.00.
7. The Court of Appeal seemingly agreed that $70,000.00 was an arbitrary figure.
8. However, the figure was nonetheless favorable to the husband and the Court of Appeal kept the husband’s income at $70,000.00 for the purpose of spousal support.
9. Frankly, it is likely that the Court of Appeal would have assessed his income higher than $70,000.00 (if they had made the decision, initially).

Annual Correction of BC Spousal Support Ordered!

Next, the Chambers Judge ordered that the amount of spousal support be reviewable on an annual basis (and that there is no set end-date).

1. The husband appealed this order, arguing that there should be more certainty regarding when they payments to his former wife will cease.
2. However, the Court of Appeal upheld the Chambers Judge’s decision, indicating that the husband could always re-attend court if there is a change in circumstances, seeking to terminate his spousal support obligation.

This last point is particularly interesting.

Often in family law, spouses who pay spousal support seek certainty in their spousal support payments.  In other words, payor spouses want to know exactly how much they have to pay and for how long.   However, this case stands for the proposition that spousal support can be reviewable each year.  And, if a payor spouse’s income increases, then the amount of spousal support payable to the recipient spouse may actually increase over time, too.

It appears that this case is the first decision from a Court of Appeal (anywhere in Canada) to uphold this sort of order (i.e. that a spousal support order requires annual, income-based readjustments).

In the future, it will be interesting to see if other provinces use this case in making their decisions.   If they do, then annual, income-based readjustments may become the norm across Canada.

I hope this article helps you understand your rights and obligations to BC spousal support. Call us toll free at 1-877-602-9900 if you need more information.

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Children of Sexual Offenders: BC No Child Contact Or Access Denial Orders

MacLean Law’s family lawyers handle hundreds of BC child contact and child access cases. In most cases courts strive to give support to the principle of maximum contact but sometimes that is contrary to a child’s best interests.  Sometimes the heartbreaking allegations of child abuse in a child custody case are true and sometimes they are false. Our skilled lawyers will ensure the court gets the real picture in your BC child access and contact case.

Associate Jeff Zilkowsky has his own newspaper column and he writes on this difficult subject today.

Lorne MacLean, QC

Few, if any, people are as reviled in our country as sex offenders, particularly those sex offenders who commit crimes against children. With that said, then, the purpose of this column is not to further demonize those offenders.  Instead, the purpose of our associate, Jeff Zilkowsky’s column is to briefly address what happens to the children of these sex offenders…

And, no, I am not referring to children who were the direct victims of crimes.   Rather, I am referring to the children that ‘belong to’ the sexual offenders (i.e. their biological or step children).

Think about it…  We rarely ever hear about what happens to those children, right?   Well, that’s the purpose of this column.

Long-term damage to children of sex offenders

The collateral damage to the children of the sexual offenders is huge.  These children are have elevated risks of depression, anxiety, and suicidal tendencies.   It may surprise you, too, to know that the children of sexual offenders experience stigmatization and harassment from others (like their parent).   This is, of course, completely unfair; but, it’s a reality.

Short-term damage to children of sex offenders

Now, of course, these are longer term effects.  So, what happens in the short term?    What happens to the children immediately after their parent’s conduct becomes known?

Well, in the short term, it is often unlikely that the offender will receive much, if any, unsupervised parenting time with their child(ren).

Once the offence is discovered (depending on the seriousness of the offence), the Ministry of Children and Family Development would likely oppose the child being in the (unsupervised) care of that parent.   The Ministry’s mandate is, of course, to protect children.

Beyond that, too, it probably won’t surprise you to know that the other parent (who was NOT involved in the sexual offences) will likely oppose any contact between the child and their former spouse.  If that occurs, then a bitter court action will likely ensue.

Presumption of parenting time not always apply  

Now, it is generally presumed (in court) that a child will benefit from spending time with both parents.  But, that presumption can be ‘set aside’ when one of the parents has a history of criminal or dangerous behaviour that may harm the child.    And, of course, that includes a parent who has a history of committing sexual offences.

So, as a result, if the matter went to the court, a parent who has a lengthy and/or serious history of sexual offending behaviour would likely have a difficult time getting unsupervised parenting time (and may even receive ZERO time with their child).

 Example of no parenting time

For instance, in J.M.G. v. T.H.P, 2007 BCPC 142, a father had a history of sexual offences that occurred prior to the birth of his son, who was three years old at the time of trial.   In that case, the judge found that it would be in the best interests of the son to grow up (at least for several years) without a relationship with his father, who was a thought to be a very bad influence.

Supervised parenting time a possibility

With all that said, though, it is POSSIBLE, depending on the facts in a case, that a sexual offender may receive parenting time.   Such parenting time would likely be supervised, though.  And, to explain, supervised parenting time refers to time that the parent can spend with the child in a supervised setting, typically supervised by a social or community worker or a friend or family member.

Please know that this particular topic is huge.  And, my blog surely can’t do it justice.  But, if there is one thing that I can make clear, it’s this: have sympathy for the children (and don’t take out your frustrations on them).   Because of their parent’s actions, their lives are forever changed.

I’m Jeff Zilkowsky and you call me at 604-576-5400.

The post BC No Child Contact Or Access Denial Orders appeared first on MacLean Family Law.

Vancouver and Surrey Child Support:  a must read for parents by Jeff Zilkowsky of MacLean Law

Ever wonder why the women on the Maury Povich show want to confirm ‘who the father is’? My (jaded) guess: they want child support. Our top rated lawyers are pleased to help you if you face a child support disagreement or just went to set the fair amount after understanding your rights and obligations.

Jeff Zilkowsky – MacLean Law Family Lawyer 604-576-5400

On that note, child support is one of the most commonly misunderstood subjects in family law. And, rightly so: it’s complicated.

So, in the interest of clearing up some of those misconceptions, this column will address some of the general laws/rules around child support.

What is Vancouver and Surrey child support?  

To begin, what is child support? Put very simply, it is money paid by one parent (who doesn’t primarily reside with the child) to another parent (who does reside with the child) to cover those costs associated with raising that child, such as food and clothing.

How much child support do you pay?

How much money does someone actually pay? Well, this question is usually very easy to answer. Typically, the amount is based on the number of the children (who are receiving support) and the income (of the person being asked to pay support).

I’ll explain further…

There are Child Support Guidelines (i.e. tables) that state how much money someone should pay based on how much money that person earns and how many children that person has to support.

For your (extra) information, here is an online calculator provided by the government (that incorporates the Guidelines) that quickly calculates how much child support someone should pay: Child Support Calculator

To illustrate, if you refer to the calculator, you’ll see that someone who earns $50,000.00/year and has two children will pay $758.00/month. It’s that simple…typically.

Now, there are exceptions; but, this is the general rule that applies to the vast majority of families.

Expenses don’t impact child support amount

And, quite frankly, it doesn’t matter how the person earns the $50,000.00/year: it could be from investments, employment, or self-employment. It really doesn’t matter. And, on that note, it doesn’t matter how much someone’s expenses are, either….

In child support claims, it is very common to have the person who has to pay child support tell the judge/lawyers that they cannot afford it. They’ll explain that they have other expenses, that they just bought a new house, that they have other children, etc. But, in the end, it doesn’t matter.

Here’s the ugly truth: if you earn a particular amount of money per year, then it’s a ‘done deal’ – you pay ‘x amount’ based on the income you earn and the children you have to support. Your expenses are your problem and, if your expenses are too high, then don’t have those expenses.

Don’t lie about how much money you earn

Now, it may not surprise you to know that some people will tell a judge that they earn less money than they actually do, so their child support obligations are lower. Well, that doesn’t work…

Lawyers and judges are clever enough to calculate your income based on your expenses and your career. So, if you won’t provide an accurate annual income, one will be ‘assigned’ to you. And, you will pay child support based on that amount.

Who pays?  Biological parents or step-parents? 

So, who exactly has to pay? Well, of course, biology is the big thing. If you’re a biological parent, then you’re going to owe child support.

But, what about former step-parents? Answer: a former step-parent is likely responsible for child support if he/she supported the child for at least one year and if the parent starts a lawsuit (against the step-parent) within one year of the support being last provided.

How long do you pay child support? 

And, how long does someone have to pay child support? Answer: child support is payable for as long as the child is 18 years old or younger or is dependent on the parents. A child can be dependent on their parents if they are attending full-time university or if they have a medical condition (that prevents them from being self-supporting).

And, also know that dying won’t necessarily relieve you from paying child support. If a non-custodial parent passes away, then child support may continue to be paid from the person’s estate.

General tip

As a last general tip, try your best to resolve child support disputes, as well as other family law disputes, outside of court. You’ll likely save a lot of money and a lot of stress. The lawyers at MacLean Law focus on resolving matters to help you move forward. Call us toll free across BC 1-877-602-9900.

The post Vancouver and Surrey Child Support appeared first on MacLean Family Law.