Karen F. Redmond, Family Law Lawyer
GREY SPOUSAL SUPPORT:
WILL YOU STILL NEED ME, WILL YOU STILL FEED ME, WHEN I’M 64?
INTRODUCTION
I naively thought that one day a discussion of spousal
support would begin without the preliminary sentiment that spousal support is
one of the most difficult areas of family law in Canada. That’s what I wrote in
1990 in my Canadian Bar Review article entitled “Pelech: Variations on a
Theme”; in 1995 in “Spousal Support After Moge” published by the Continuing
Legal Education Society; and in 2011 in The Huffington Post: “Family Law’s
Crapshoot: Will Canada Reform Spousal Support Laws?”
And here I go again… the promised consistency and certainty
that would allegedly flow from the Spousal Support Advisory Guidelines (“SSAG”)
has proven illusory. The stark reality is pre-SSAG one could at least rely on
precedent, similar cases with similar facts, but today, not so much, and don’t
get me going on the discrepancy in the use and abuse of the SSAG across Canada.
Sadly, similarly situated spouses across Canada face support
awards and principles that bear little resemblance to spousal support orders
made in British Columbia, the jurisdiction that has most avidly welcomed, even
embraced the SSAG. B.C. judges and SSAG go together like “Love and Marriage”
with all due respect to the great Frank Sinatra and the fine judges of our
Court of Appeal.
The lack of predictability in spousal support awards, including variation and termination of support orders, has increasing importance as Canada faces a “greying” population and long term marriages are crumbling at startling rates, owing in part to the “boomers” refusal to imitate the more languid lifestyles of previous generations. It is universally recognized that many Canadians are healthier, and with advances in medicine, life now has more “cherries in the bowl”. Statistics Canada reports that by 2036 there will be only 2.5 workers in Canada for every retired senior. That’s a lot of old people!
Spousal support for spouses 50 or older introduces
considerations and consequences that require a nuanced approach to the
determination of quantum and duration, reviews, variation, and termination. In this paper I will review the most recent
spousal support cases from the British Columbia Court of Appeal to provide a
glimpse of current trends and issues.
I believe this review will illustrate the impact of grey
divorce on Canada’s divorce industry and the future prospects for family law
lawyers.
1. JENDRUCK v. JENDRUCK 2014 BCCA 320
The Jendrucks were married for 34 years, were in their late
50’s, and had two independent children. Mrs. Jendruck was not employed at the
time of trial but had previously worked at a bank for 20 years and operated a
daycare from her home. Mr. Jendruck’s income was $80,000 per annum.
Mr. Jendruck argued his wife had made no effort to become
economically independent and that income should be imputed to her. The trial
judge found that Mrs. Jendruck’s lack of self- sufficiency was Mr. Jendruck’s
fault as he had maligned his wife’s daycare operation, leading to her emotional
issues. The trial judge expressly noted
that Mrs. Jendruck could not be expected to work for minimum wage at a job that
would provide no satisfaction to her.
Support was ordered at the highest range of the SSAG, an
amount of $3,849.00 per month, to be reviewed in 2020 when the husband would
attain 65 years of age.
The husband appealed citing the trial judge’s error in
attributing his wife’s inability to continue with her daycare operations and
emotional upset to him. He also argued that the notion that his wife was exempt
from seeking outside employment, albeit at minimum wage, was wrong in law.
Madam Justice Saunders agreed that the trial judge had erred
on the basis of the following factors:
- Neither the pleadings nor the trial evidence supported the trial judge’s theory that the wife was unable to restart her daycare;
- There was no evidence, other than the wife’s; that her emotional state would prevent her from the childcare work she aspired to.
- Mr. Jendruck’s “unenthusiastic” comments about his wife’s daycare operation did not “bear upon her ambition once he left the family home”.
- Mrs. Jendruck had argued she needed to retain the family home in order to operate her day care, a position the trial judge acceded to.
- The court cited Van Gool v. Van Gool (1998) 44 RFL 4th 314, for the proposition that “this Court has never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because they could not obtain interesting or highly-paid work”, declaring it to be applicable to a spouse’s obligation to contribute to her own support insofar as is practicable, pursuant to the Divorce Act.
a) The wife’s pleadings did not include the assertion she
was incapable of restarting a day care in her home. With the new “check-box”
pleadings it is easy to skip over important facts that are central to a party’s
case. Counsel often forgets it is the pleadings that govern the issues and
argument in a case.
b) The Court found that the wife’s evidence of emotional
upset and an inability to work was insufficient to make a finding of fact in
that regard. When physical or emotional incapacity is relied on to support an
award of spousal support, there must be independent third-party evidence such
as medical records or a medical report.
c) Despite a 34-year marriage, and a 58-year old dependent spouse,
with no more than a grade twelve education, but previous work experience,
counsel can no longer suggest that it is inappropriate or degrading for their
older female clients to work at a menial job for minimum wage.
2. LEE v. LEE 2014 BCCA 383
The Lee’s were married for 20 years with no children and
were ages 56 and 49 at the time of the appeal. Mr. Lee spent ten-years as a
“car man” with Canadian National Railways and part-time as a doorman at a bar.
Mrs. Lee spent these years earning a bachelor and master’s degree at her own
expense and eventually became a high school principal earning $120,000 per
annum. Mr. Lee’s CNR income topped out at $48,000, but came to an end as a
result of a car accident that “made it impossible for him to wear a hard hat”.
He then began to work part-time as a personal trainer earning $10,000 per year.
However, he never filed tax returns, citing his nominal income as the reason.
Mr. Lee received an ICBC settlement of $320,000 that he said
was used for family expenses, including a payment of $240,000 against the mortgage on their first
family home. The evidence showed that the parties lived well beyond their means
and repeatedly remortgaged their home to pay down credit card debt and
overdraft lines of credit.
Mr. Lee suddenly told his wife that the marriage was
finished and moved in with a policewoman who earned a base salary of between
$75,000 and $90,000, before overtime. While his new partner’s income records
were subpoenaed she did not produce them.
Mr. Lee claimed spousal support pointing to the significant
disparity in income between he and his wife. He agreed to an imputation of
income in the amount of $40,000 per annum and sought monthly support of $2,100.00 for seven and one-half years when
he would receive a CNR pension of $1,490.00 per month.
Mr. Lee received a modest reapportionment of the net family
assets of $186,485.00 and a Part 6
division of their respective pensions. The Court discounted his argument that
his contribution to the pay down of the mortgage supported a larger
reapportionment. The judge did not accept that his contribution was greater
than his wife’s, given her high income, and noted that much of his settlement
was used to purchase a Subaru vehicle, a Corvette including $20,000 in
modifications, another Subaru, and a Harley-Davidson motorcycle, all for
himself.
The trial judge held that Mr. Lee was not entitled to
spousal support in addition to 54% of the net family assets, finding there was
no basis for compensatory or needs-based support. Mr. Lee had received about
$19,000 in voluntary interim support that he was ordered to repay to his wife.
The husband’s spousal support appeal was essentially about
his entitlement to the standard of living that Mrs. Lee would continue to enjoy
post-divorce.
Madam Justice Newbury remarked that Mr. Lee had not forgone
any educational or career opportunities or made any other “sacrifice”. He also
did not make a substantially greater contribution to the family than did Mrs.
Lee.
She identified the “question of principle” raised by Mr.
Lee’s appeal succinctly:
“Whether it can be said that by virtue only of the disparity
between his and Mrs. Lee’s income going forward, he can be said either to have
suffered a disadvantage by reason of breakdown of the marriage, or to have a
claim to spousal support on the basis of need.”
Madam Justice Newbury acknowledged the generalized comments
of Madam Justice L’Heureux-Dube in Moge v. Moge that suggested the question
before her could be answered in the affirmative, however, she also averted to
the oft-cited proposition that “marriage per se does not automatically entitle
a spouse to support.”
The Court cited extensive portions of Professor Carol Rogerson’s
article from 2001 titled “Spousal Support Post-Bracklow” 19 CFLQ 185, including
where Ms. Rogerson referred to a quote from the Ontario Supreme Court in Keller
v. Black (2000) 182 DLR 4th 690:
“It seems that Bracklow has taken us to the point where any
significant reduction in the standard of living of a spouse, resulting from
marriage breakdown will warrant a support order—with the quantum and/or
duration of the support being used to tweak the order so as to achieve justice
in each case.”
Madam Justice Newbury agreed that the Court’s comments in
Keller v. Black aptly described the approach adopted in British Columbia as
well, however, she found there was no precedent for an award of spousal support
based “solely on the disparity of incomes, or even solely on the basis of the
non-compensatory model” referring to several cases including Chutter v. Chutter
2008 BCCA 507; Hodgkinson v. Hodgkinson 2006 BCCA 158; and Fisher v. Fisher
2008 ONCA 11.
She also noted that in Farrar v. Farrar 2003 63 OR 3d 141
the trial judge ordered Mrs. Farrar to pay her spouse the sum of $12,000.00 solely
on the basis he was in need and she had the ability to pay, an order overturned
by the Ontario Court of Appeal stating that “the differential in income alone
did not provide a basis for awarding spousal support.”
Equalization of income was also considered in Griffiths v.
Griffiths 2011 ABCA 359 where the appeal court said:
"Equalization of incomes, or even of lifestyles, is not a
basis alone for non-compensatory spousal support. Still less is equalization of
incomes each year. Loss of access to the fruits of the respondent’s future
labour is not a recognized underpinning to entitlement to spousal support,
absent other considerations.”
Most notably, the Court found that if Mr. Lee had not formed
a new relationship the current case law in British Columbia would have
permitted an award of spousal support, given 20 years of marriage, but:
“whether it would have been a material error in law or a
wrong exercise of discretion to refuse support in such circumstances is another
matter…To rule as a matter of law that Mr. Lee should be compensated
indefinitely for the “loss” of the ability to share in Mrs. Lee’s income and
lifestyle would, taken to its logical conclusion, mean that support must be
ordered on one model or the other in virtually every case that comes before the
court.”
The majority held that the only appropriate change to the
trial judgment should be the elimination of Mr. Lee’s obligation to repay his
wife for the interim support. Dissenting on this point alone, Madam Justice
Bennett held that the repayment order was sound in law based on the economic
effect of Mr. Lee’s new relationship with a partner who owned her own home and
earned a substantial income.
Mrs. Lee was awarded 90% of her costs.
IMPORTANT ‘TAKE-AWAYS” FROM LEE
- After reading Lee v. Lee I got the sense that the trial judge did not like or respect Mr. Lee. The trial judge referred to Mr. Lee’s admission that he had been selling steroids and growth hormones illegally; earning $200.00 a month, a modest sum that was contradicted by third party evidence. The Court also acknowledged that money Mr. Lee had borrowed or assets acquired remained undocumented or incompletely explained. The Court also found that the standard of living enjoyed by the Lees was illusory as it was accommodated with borrowed money.
- The trial judge expressed skepticism that Mr. Lee’s employment choices were limited to part-time personal training, referring to a video recording taken surreptitiously by a private investigator that filmed Mr. Lee at his gym lifting heavy weights with considerable agility. There was also expert evidence that a full-time trainer with only a high school education could earn up to $60,000 a year.
- Mr. Lee’s assertion that his financial contribution to the marriage exceeded his wife’s received short shrift with the Court of Appeal emphasizing that it was neither desirable or necessary to carry out an accounting of “who paid what” during the marriage.
- Undoubtedly gender played a role in the court’s ultimate conclusion. Madam Justice Newbury referred to “transitional support” allowing that:
“Such awards have regularly been made in
favour of women, but rarely in favour of men, perhaps reflecting that, as
Rogerson suggests, “Non-compensatory support is significantly structured by
social norms of what is fair and just. The economic dependency of husbands on
wives is not reinforced and naturalized by strong cultural norms, as is the
dependency of wives on husbands…”
3. HEPBURN V. HEPBURN 2013 BCCA 383
In my view the heaviest litigation traffic
amongst aging boomers will be in reviews, variations, and applications to
terminate spousal support, based on section 17 of the Divorce Act. The Hepburn
case is illustrative of this prediction.
Dr. Hepburn, age 55, was a family physician
that had a modest sideline writing a syndicated medical column for local
newspapers from which he earned about $30,000.00 per annum. After 26 years of
marriage the Hepburn’s separated in 2006. Mrs. Hepburn, age 65, had raised
their four children and occasionally performed bookkeeping and administrative
duties for her husband’s medical practice.
The parties negotiated a settlement,
agreeing that Dr. Hepburn’s income for the purpose of a SSAG calculation was $220,000
while his wife’s was nil. He agreed to pay his wife $8,000.00 a month
indefinitely with no review.
In 2008 Dr. Hepburn decided to amp up his
media career and spend less time seeing patients and more time developing a
media platform. Eventually he signed a contract with the Oprah Winfrey Network
to produce a television show called Wisequacks. He would be paid a modest
$1,250.00 per episode. As a minority owner of a group of medical clinics, in
2009 he was asked to transfer his practice to another clinic location, and he
agreed.
His pursuit of a media career was not
lucrative and entailed many hours of networking and creating opportunities for
potential success. In 2011 he advised his ex-wife that because of a downturn in
his income he would reduce her monthly support from $8,000.00 a month to
$5,000.00 a month.
At a variation hearing in 2012 he deposed his
annual income was only $145,000, while his former wife’s income had grown from
nil to $12,000.00 a year, on account of rental income and Canada Pension Plan
benefits. Dr. Hepburn argued that his change of workplace resulted in fewer
patients and less income. He also suggested that the media industry was
changing rapidly and that other media forms had displaced a weekly newspaper
column. He also contended that income should be imputed to his ex-wife because
she had not taken reasonable steps to become self-sufficient.
The chambers judge dismissed his variation
application opining he had not met the onus of proving a material change in
circumstances. The judge found that the change in the location of his workplace
was not mandatory; the fact Dr. Hepburn now spent almost fifty per cent of his
time on media activities, with no commensurate financial benefit, was also a
personal choice that should not give rise to a change in his spousal support
obligations.
On appeal Madam Justice Neilson agreed with
the chambers judge that Dr. Hepburn’s relocation in his workplace was voluntary
and that he ought reasonably to have known that the change would translate to a
lower income. She also found that Dr. Hepburn had failed to show that his media
activities had a reasonable prospect of financial success, a factor that could
have justified the hours he devoted to it.
However, the appeal court allowed the
appeal recognizing that the decrease in his media income and the increase in
Mrs. Hepburn’s income post-separation, albeit moderate, were nevertheless
material. Dr. Hepburn’s income was found to be $200,000.00, a reduction of
$20,000.000 per annum and Mrs. Hepburn’s $12,000.00 per annum, an increase from
nil income.
Dr. Hepburn was ordered to pay $6,850.00 in
spousal support.
IMPORTANT “TAKE-AWAYS” FROM HEPBURN
- Although far from startling, the fact remains there is a very heavy onus on a variation applicant to prove a material change in circumstance that is not characterized as voluntary or self-serving. Any change in a payor’s income that comes as a matter of choice is fatal to a successful variation application.
- Where an applicant has a high-paying, long-term professional position, his or her desire to “stop and smell the roses” is permitted, but not at the expense of a reduction in a dependent spouse’s spousal support.
- There is no doubt that Mrs. Hepburn’s age was an important factor although it was not specifically mentioned by either court. Dr. Hepburn’s suggestion that his former wife had not taken serious steps to become self-sufficient garnered little comment from the courts.
4. ZACHARIAS v. ZACHARIAS 2015 BCCA 376
This couple was married for 31 years,
separating in 2006. They negotiated a settlement of all matrimonial issues that
saw each of them retain 50% of the family assets and Dr. Zacharias agreed to
pay indefinite spousal support to his former wife of $6,000.00 per month.
Mrs. Zacharias married her husband at the
age of 17 and was 58 at the time of the appeal. Dr. Zacharias remarried after
his divorce from Mrs. Zacharias, but was again divorced. He was 63 years old at
the time of the appeal.
In 2012 Mrs. Zacharias remarried a man who
earned $175,000 per annum. The chambers judge found that her remarriage
constituted a material change in circumstances that was unforeseen at the time
of the original support order.
At the time of the variation hearing Dr.
Zacharias’ income was $300,000 per year, while his former wife’s was $45,000,
not including her spousal support.
The chambers judge found that Mrs.
Zacharias wholly supported the family while her ex-husband studied to become a
medical doctor. He also found that she assumed most of the childcare and
household management for her husband and their two children.
Mrs. Zacharias worked full time before the
birth of her second child and then sporadically during the marriage in a
part-time position at Dr. Zacharias’ office. After the date of separation she
continued working in a doctor’s office. After the divorce she trained as a
hairdresser and later upgraded her skills to become a bookkeeper.
The chambers judge determined that Mrs.
Zacharias had moved to accommodate her husband’s career but the relocations had
not disadvantaged her. He gave little weight to her contribution in the early
years of the marriage while her husband was qualifying as a physician and concluded
that she no longer had entitlement to non-compensatory support as her net worth
now exceeded her husband’s and she was able to contribute $2,000.00 every month
to an RRSP.
The chambers judge considered that the
original spousal support award had two components: half of the award was
needs-based and half was compensatory. He reduced spousal support by $3,000.00
representing the non-compensatory portion of the $6,000.00 consent order.
On appeal Dr. Zacharias sought a
termination of spousal support. Mr.
Justice Groberman reviewed the lower court’ s findings and held that the
variation order was essentially “premised on the length of the marriage alone
and the unexplained view that one-half of the original spousal support award
was compensatory.”
He found the judgment was “not well-founded
in law” although he agreed with the chambers judge’s conclusion that
entitlement to compensatory support still existed and the sum of $3,000.00 was
appropriate. The appeal was dismissed.
The appeal court noted that both appeal
counsel referred to Morigeau v. Moorey 2015 BCCA 160 which on its face seemed
contradictory to the court’s conclusion in Zacharias.
The facts in Morigeau included an older
couple in a long marriage where the former husband sought a variation in
spousal support because his ex-wife had re-partnered with a man who earned $
155, 000.00 per year. At the time of the original support order, Mrs. Morigeau
was in an exclusive relationship with her boyfriend and the two spent considerable
time together, although each maintained separate accommodation.
Madam Justice Kirkpatrick agreed with the
trial judge’s finding that Ms. Morigeau’s cohabitation was reasonably foreseeable
and correct on the facts and law. She stated that the circumstances were
factually indistinguishable from the Supreme Court of Canada’s decision in G.
(L.) v. B. (G).
Mr. Justice Groberman in Zacharias said:
“I acknowledge that some of the obiter comments
in Morigeau might, if extended too far, be seen as inconsistent with the
analysis I have presented. Some caution should, in my view, be exercised in
applying those obiter comments. While they may be applicable in some cases,
individual circumstances will have to be carefully considered. In particular, I
would suggest that characterizing a re-partnering situation as a potential
“windfall” for either the payor or payee spouse will rarely be helpful.”
IMPORTANT ‘TAKE-AWAYS “ FROM ZACHARIAS
- The substantial salary of Dr. Zacharias played a significant role in the court’s refusal to terminate spousal support. In Morigeau, the support order was $1,800.00 per month based on the husband’s salary of $119,000.00 and the wife’s of $47,850. At the date of the variation hearing the former spouses earned $118,000.00 and $52, 524.00 respectively. Mrs. Morigeau’s new partner had income of $155,000.00.
- When settling spousal support cases it may be helpful to set out the basis upon which the order is made in contemplation of the inevitable variation application.
- While hyperbole and descriptive language may be influential in the lower courts, it is usually frowned upon in appellate courts, thus the appeal judge’s condemnation of the description of “re-partnering” as a “windfall.”
CONCLUSION
Grey divorce is a relatively new phenomenon
and research is limited, particularly in Canada where Statistics Canada stopped
collecting marriage and divorce data in 2008. Nonetheless, we know that the
only age group where there is a rise in divorce is in the over 50 population. A
poll of 1,600 American divorce lawyers revealed that 61% acknowledged an
increase in divorce in their over 50 clients, with 25% of those divorces being
initiated by women, as opposed to 14% by men.
The same survey of members of the American
Academy of Matrimonial Lawyers indicated the most contentious issue in grey
divorce is spousal support or alimony.
Why the explosion in divorce among baby
boomers? Several reasons emerge including empty-nest syndrome, greater
financial independence with boomer women, healthier and longer lifespans, and
the prospects of new relationships.
There can be no doubt that family law
lawyers will benefit from divorcing boomers, as will financial planners,
mediators, divorce coaches and other professionals in the divorce industry.
Georgialee Lang BA JD FCIArb
