Spousal support in a medium-term marriage dealt with in recent British Columbia Supreme Court decision
Spousal Support in a Medium-Term Marriage - the SSAG
Aquila v. Aquila
, 2016 CarswellMan 88 (Man. C.A.) - Mainella J.A. This is an extremely important spousal support case from the Manitoba Court of Appeal. The essential issue for the court was whether to vary or reverse the trial judge’s order that put a termination date on spousal support after a 17-year marriage, where the wife did not meet the rule of 65.
The Court of Appeal recognizes that this case is a challenge which is not uncommon in a medium-term marriage where the rule of 65 does not apply. Marriages of short duration or marriages of long duration (i.e. after 20 years) are much easier to deal with and the jurisprudence is much clearer. The Manitoba Court of Appeal recognized that inconsistency of spousal support outcomes is a fact of life in family law and, while the Guidelines have gone a long way to reduce the uncertainty, cases like this pose a serious conundrum.
The Manitoba Court of Appeal says this:
The interpretation given to sections 15.2(4) and 15.2(6) of the Act in Moge
recognizes that, absent the situation where one spouse is irreparably economically disadvantaged by the marriage or its breakdown, or there is a legitimate need for continuing support that justice requires be addressed by a spouse with the means to do so, the basis for entitlement for spousal support can evolve and, ultimately, spousal support may end after a reasonable time even in a marriage of the length and financial interdependence of the parties here.
The trial judge found that spousal support should terminate after the wife has received 11 years of spousal support. That is to coincide with the husband’s expected retirement as a judge at age 65. The Court of Appeal recognises that on breakup of a lengthy marriage, a spouse entitled to spousal support should be able to enjoy a reasonably comparable life style post separation to the marital standard of living. However, if support ends after 11 years, that may not always be possible.
When the case was first heard and the first support order was made, the wife was encouraged to make more significant efforts at self sufficiency. She has not done so and has a limited income and health problems. The Court is mindful of the concept of double-dipping and the judge’s pension or retirement allowance has already been divided.
The Court of Appeal finds that the wife can redeploy the capital she received from the equalization payment to live at a standard of living reasonably commensurate with the one enjoyed during marriage. This is different from the idea of encroaching on capital in order to live at a standard of living commensurate with the marriage.
The Court finds that the wife can downsize and maintain her living standard. Nevertheless, they do amend the trial judge’s order. The trial judge made support terminable upon the husband’s retirement and anticipated his retirement in 2019. The Court of Appeal amends the order to add a condition that the husband is ordered to provide written notice to the wife of his full retirement date so that the wife will be entitled to consider her options and, presumably, bring a motion for a continuation of spousal support.
The Court of Appeal says this about the SSAG:
The overall adequacy of spousal support ordered must be assessed by an appellate court mindful that there are often good reasons for a judge to trade off the amount and duration ranges set out in the SSAG (see the SSAG at X, 10.2.1 and 10.2.2; McCulloch v Bawtinheimer
, 2006 ABQB 232 at paras 61-62, 423 AR 88; Fisher
(Ont CA) at para 114; and Cassidy at paras 74-75). The canary in the coal mine for an appellate court that signals possible unreasonableness with a spousal support award is, in the absence of an obvious reason to explain an anomalous result, whether the global value of spousal support, considering the amount and duration together, is drastically less or more than what is suggested by the SSAG (see Remillard
at para 91; and Fisher
(Ont CA) at para 201).
The Court of Appeal recognizes that under the SSAG, the trial judge could have ordered a greater amount or greater duration of spousal support, but that does not make the outcome unreasonable. The Court said:
. . . That said, as an aside, it is important to remember that proper use of the SSAG is more than just math and an understanding of the SSAG. A critical analysis of the individual circumstances using the correct legal principals in the Act must be made by the judge in making a spousal support order. In using the SSAG to assist that critical analysis, judges must remember the threshold question of entitlement, make proper findings of fact in relation to the calculations required for the relevant formula and also direct their mind to the SSAG at ch 9 for suggestions as to using the SSAG ranges in light of the given circumstances and the legal principles in the Act. Departure from the SSAG should also be explained by the judge if the reason is not self-evident from the record and the parties’ submissions.
As the Court noted, these are difficult cases and the limited duration of support in this case will be somewhat of a surprise to many counsel who wrestle with these kinds of cases.