It seems BC Courts have not recognized that spousal support guidelines are advisory only and not law and should not usurp the role of the court making an individual analysis as required by the Divorce Act. While other courts across Canada have criticized the guidelines BC Courts accept them and in cases of short marriages have awarded awards grossly in excess of the guidelines ranges both in quantum and duration.
Contrast the two BC cases below with the two from Quebec and New Brunswick. Whether BC cases will cause a net migration of high net worth individuals out of Bc remains to be seen but there is not doubt BC is the most generous spousal support award province in Canada. The summaries below are taken from an article by the authors of the SSAG.
Toth v. Kun, [2006] B.C.J. No. 739, 2006 BCCA 173 (C.A.) (Hall J.A.)
Married 10 years, no children, husband 64, wife 41
Interim support $2,300/mo., varied to $2,400 in April 2003
Wife health problems, but will recover, poor English
Husband earned $70,000, but now retired, only $42,000
At trial: support varied to $1,500, indefinite
On appeal: too onerous, so time limited, step-down
$1,200/mo. to Sept. 2006, then $1,000/mo. to Sept. 2009, support paid 6 ¬? years
Range $525-$700, 5 to 10 years [within global range on restructuring]
Ahn v. Ahn, [2005] B.C.J. No. 2742, 2005 BCSC 1745 (S.C.)(Master Taylor)
Together 14 months, married 8 months, husband 57, wife 46
Husband earns $154,885, wife nothing
Wife left job in Washington State, earning $47,000 U.S., unable to work in Canada
Husband wanted executive assistant and wife
Interim spousal support of $3,500/mo. plus rent-free in house (husband pays $2,200/mo.)
Wife relies upon “compensatory exception” in Guidelines
G.V. v. C.G., [2006] J.Q. no. 5231 (Que. C.A.) (Forget J.C.A.)
Married 32 years, 3 children, one (18) now with husband, custodial payor
Wife 55, earning $50,000, husband earns $227,000
Child support $15,948, grossed-up to $33,000
Trial judge applied Advisory Guidelines: range $4,500 to $6,000; low end of range ordered, $4,500 indefinite
Trial judge erred by not engaging in a detailed individual analysis
Court states that [TRANSLATION] « the dossier as it is and the brief pleadings of counsel on this aspect do not permit us, in my opinion, to pronounce a judgment of principle upon the utilisation of the Advisory Guidelines. » Court refers to important criticisms of Advisory Guidelines found in judgments of Justices Julien and Gendreau [see cases below] and concerns about « recipes »and formulas being used to avoid the difficult individual analysis required.
S.C. v. J.C., [2006] N.B.J. No. 186, 2006 NBCA 46 (N.B.C.A.)(Larlee J.A.)
Married 25 years, two adult children, wife 42 (40 separation), husband 45, traditional marriage
Husband army officer, earns $100,000
Wife working in Kingston, Ont., Health Ministry, earns $46,764
Trial judge ordered $1,625/mo., using Advisory Guidelines, for 5 years
Appeal dismissed, Guidelines approved, help to bring consistency and predictability
Trial judge used low end of range, income issues raised by wife
Almost a presumption of indefinite support, review favoured here ordinarily over time limit
But deference to trial judge: wife young, no dependents, capable, steady employment
Wife quickly able to reintegrate into work force, 5 years a longer term