Lorne MacLean, high net worth BC divorce lawyer and his BC MacLean Family Law Group handle many high BC spousal support income and high BC family asset net worth cases and recently obtained a combined BC child and spousal support award of almost $30,000 per month. Many high net worth BC family asset cases not surprisingly involve high BC spousal support income as well. Until recently it had been thought that a BC high net worth family asset award to a spouse of perhaps 3 to 4 million dollars would mean the BC spouse with a lower income would not be entitled to spousal support as they would be receiving a generous award of family assets which could be used to generate income and as well the capital could be slowly used up as well over the lifetime of the spouse. The recent BCCA case of Chutter has turned this idea upside down.
An older Supreme Court of Canada case called MOGE held that the longer the duration of a marriage the greater the presumption that equal standards of living for both separated households at the end of the marriage. This principle along the Spousal Support Guidelines and the DIvorce Act’s three part test for awarding support being:
1. contractual -a marriage or separation agreement exists;
2. need and ability to pay-think Robin Hood -take from the rich and give to the poor;and
3. compensatory- think opportunities given up by lower income spouse as a result of being a homemaker including raising of children means their income is less than it could have been without these sacrifices;
has led the the Court of Appeal in Chutter to award a wife who received 4 million of assets with an a support award of $2800 a month compared to a spousal support advisory guideline range of over $4000 to over $5000 per month.
The question remains if 4 million of assets reduces support to less than 60 percent of the mid -range of support under the guidelines, what amount makes spousal support unneccessary and at what amount below $4 million does spousal support start to be reduced below the guidelines. Other arguments that arise in these cases are consideration of risk and income tax on assets each party keeps and what notional investment income should be attributed to the assets each party receives. Should a business asset that one spouse receives as part of their share of property have the income it produces excluded form spousal support considerations? Call us to find out your rights in this complex area.
The lengthy extracts from the case are attached.
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