1.877.602.9900BC Supreme Court Family Law Decision awards Spousal Support at low end
of Canada’s Spousal Support Advisory Guidelines to reflect paying
Spouses’ expected decline in income.
In Derksen v. Derksen,[1]
a recent case from the BC Supreme Court, the Honourable Madam Justice
H. Holmes awarded spousal support at the lower end of the range
suggested by the Spousal Support Guidelines. At issue in the case was the appropriate quantum to be awarded in spousal support payments to the wife. The
parties had been married some 33 years and Mr. Derksen had been the
primary breadwinner for the duration of their marriage while Ms.
Derksen stayed at home raising the two children of the marriage.[2]
The husband had, in the past, been required to work overtime hours and had worked additional overtime of his own volition.[3] Remuneration for overtime work made up 25% of his total income.[4] Based on his average income over the past four years, the Spousal Support Guidelines indicated that he should pay spousal support between $2,415 -$3,220 per month. Based on his average income over the past eight years, the Spousal Support Guidelines
indicated that he should pay spousal support between $2,514-$3,220 per
month. Nonetheless, the Honourable Madam Justice H. Holmes awarded
spousal support in the amount of $2,400 – an amount below the suggested
range for either time frame.
What can account for
this decision? Madam Justice Holmes accepted Mr. Derksen’s testimony
that he suffered from “certain back problems that had begun to limit
his ability to work”.[5]
These back problems, Holmes J. found, would likely require Mr. Derksen
to “slow down” in the coming years and to “take some of his overtime in
the form of time rather than money.”[6] Justice
Holmes accepted that the payor husband’s income would decrease as he
aged and became less able to work overtime. She held “Mr. Derksen will
need to make some concessions to the realities of his age if he is to
keep working in the years to come.”[7]
As a result of these concessions, the quantum of spousal support
awarded should reflect this reality of decreasing earning potential.
Justice Holmes held that Mr. Derksen’s income is “likely to fall below
the averages on which the ranges are based” in the years to come. As
such, $2,400 per month was held to be the appropriate quantum for
spousal support that should last “until Mr. Derksen turns 65 or retires
and is eligible for his employment pensions, whichever time is later.”[8]
[1] 2007 BCSC 542 [Derksen].
[2] Ibid. at para.6 and 7.
[3] Ibid. at para. 54.
[4] Ibid.
[5] Ibid. at para. 55.
[6] Ibid. at para. 61.
[7] Ibid. at para. 59.
[8] Ibid. at para. 62.
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