To reach us at any time, call our toll free number: 1-877-602-9900

  • MacLean Family Law Group - Vancouver

  • Suite 3103 - 1077 West Cordova Street
  • Vancouver, BC
  • V6C 2C6
  • Tel: 604-602-9000
  • Fax: 604-682-0556

  • MacLean Family Law Group - Fort St. John

  • 9503 100th Avenue
  • Fort St. John, BC
  • V1J 4N4
  • Tel: 250-262-5052
  • Fax: 250-262-5053

  • Search BC Family Law

   

Archive for the ‘spousal support’ Category

« Older Entries

BC Spousal Support Advisory Guidelines-SSAG- BC Support Success Story for MacLean Family Law Group-Pre Tax Profits Used For High Support

Sunday, June 13th, 2010

Lorne MacLean Vancouver BC spousal support guideline award and SSAG spousal support guidelines lawyer


Lorne MacLean BC SSAG support and spousal support guidelines lawyer, using the with child support spousal support advisory guideline formula, recently succeeded in obtaining a lucrative BC Spousal Support Advisory guideline ” SSAG” and BC child support guidelines award on behalf of his client, the wife, in a complex and high net worth BC spousal support guidelines and BC child support guidelines proceeding where a BC child support award of $8771 retroactive for 13 months (plus private school and extracurricular fess of roughly $3000 monthly) and a BC spousal support advisory guidelines award of $17714 was ordered meaning the combined monthly payments of spousal support advisory guidelines support and child support approached $30,000 per month. The award ranks as one of the highest court BC spousal support awards in BC since the SSAG spousal support calculations came into effect. Mr. MacLean succeeded in having the court use all of the companies pre-tax profits for the SSAG calculation based on BCCA law from the cases of Klukas and Teja, defeating the husband’s spousal support claim that double dipping applied to BC spousal support and a lower BC spousal and BC child support payment should thus be paid, blocking any $350,000 cap argument where BC spousal support is not increased on high salaries above $350,000 per year and finally in having the child support portion of the order made retroactive so a large lump sum payment was received for the children’s benefit. We were delighted to have achieved such a generous BC spousal support and BC child support result for our BC family law client.

For privacy reasons the case is referred to as A.R.J. v. Z.S.J. [2009] B.C.J. No. 2393, B.C.S.C. The brief facts are:
-Married for 16 years.
-Two children.
-Husband, a surgeon, was sole director and equal shareholder in his professional services corporation.
-A personal services corporation unlike a company involved in a riskier or more capital intensive maunufacturing business, generally speaking, does not require significant injections of capital in order to operate.
-Citing our Appellate case authority Mr Justice Savage determined that in the absence of legitimate calls on the pre-tax corporate income of a company, children and a spouse are entitled to support based on the full income available to the payor spouse.
-The double-dipping argument was rejected as it was the income earning capacity of the payor that gave rise to the assets in the company and this argument was not valid.
-No $350,000 cap would be used for the husband’s income which would have drastically lowered the wife’s support.

We look forward to helping high net worth spouses involved in complex family law cases.

A Happy Client gives Lorne MacLean a Great Birthday Cake

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Blog Articles, Child Support, Success Stories, spousal support | No Comments »

Parental Support Claims in BC MacLean Interviewed on Global TV

Wednesday, June 9th, 2010

Lorne MacLean, Senior Partner at MacLean Family Law Group, was interviewed on June 9th 2010 by Anne Drewa of Global TV and we provide a summary of the facts of the Interview on this interesting issue.
In a current Osoyoos, BC parental support claim made by Ken Anderson’s mother against him and his three siblings, the facts as disclosed in the media are:
• There was an alleged abandonment/estrangement by the mother when the Mr. Anderson was 15 when his mother disowned him
• Mr. Anderson allegedly does not have sufficient funds to pay the mother
• The children will have to pay money to fight this that could be used to support their immediate families

Section 90 of the Family Relations Act states:
(1) In this section:
“child” means an adult child of a parent;
“parent” means a father or mother dependant on a child by reason of age, illness, infirmity or economic circumstances.
(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child

Current claim
The history of section 90 as applied by B.C. judges shows that there have been 5 reported cases of which only two were successful, one of those on an interim basis only. The other was a case where a child had promised to pay a mortgage her mother had taken out. The child reaped the benefits of the mortgage, and then failed to pay for it. MacLean feels the section is anachronistic and should be repealed as a vestige of a bygone era where governments in the 1920’s and 30’s sought to reduce their liability to support indigent persons.

Result of a similar case brought by a father in 1997, Newsom v. Newsom, BCSC per Mr Justice Burnyeat:
Quote: The applicant is the author of his current standard of living. He can blame no one other than himself for the fact that his previous income and his previous capital base are no longer present. The state support which is available to him allows him to live in what the state has decided is a minimum acceptable standard of living. He should not be allowed to look to those he abused and to whom he provided virtually no economic or emotional support so that he can live in a manner more in keeping with a lifestyle that he enjoyed almost 30 years ago.
However, on an appeal at the BCCA in 1999, it was decided that factors of estrangement and the obligations of the children to their families should not be dealt with on an interim application. Therefore, two of the children were ordered to pay a sum of $200 each per month on an interim basis. There is a possibility, therefore, of interim success if the mother can make out a bare bones case, but success on a final Order will be much harder.

Synopsis of principles:
An adult child may be responsible for the support of his or her biological mother and father. Under s. 91, a parent, or an agent of the provincial Attorney General, such as an agent of the Public Guardian and Trustee of British Columbia, can make the application on behalf of the parent although in reported cases only parents themselves have applied.

Factors from Newsom:
• “The obligations that of each of the defendants (adult children) have to their own families will take priority over any obligations that they owe to the applicant;
• “Any assets and income which are available to the (adult children/defendants) from their spouse or former spouses are not to be taken into account when determining whether, on the basis of their responsibilities and liabilities and their reasonable needs, they also have an ability to maintain and support the applicant;”
• Evidence of abandonment, abuse and estrangement can be taken into account as one of the factors in the objective evaluation of the application;
• “The length of the period of estrangement is also a factor to be taken into account in the objective evaluation of the application and the consequent ranking of the needs of the adult child; and
• “A parent should first look to spousal support and, only if such support is not available, to then look to possible child support”

There are reasons to repeal the section:

• Many children already support their parents
• Some parents already have provincially and federally funded support such as welfare or CPP
• There is a stigma attached to parental support
• If child support ends in the mid twenties at best why would an adult be entitled to support?
• Why punish children for the choices of their parents?
• There is little prospect of success and a claim will have a negative impact on family relationships caused by this section do we really want to open old family wounds?

The B.C. Law Institute has recommended repealing s. 90 in their March 2007 report:

“Parental support legislation creates mischief for older adults, their families, and the general public, and this mischief cannot be completely remedied by amending the legislation.
Section 90 has been rarely used in the past and it will likely continue to languish in the future, because it is based on a fundamental contradiction. Litigation is too costly, time consuming, and complicated to be an effective method to deliver relief to the poor. Repealing section 90 will not deprive the poor of a practical tool to better their lot.”

It appears no legislative action has been taken, but cases remain few and far between in any event and provinces such as Alberta have already gotten rid of similar legislation.

However, with pending demographic changes and a surging aging population will governments again need to reduce their budgetary commitments to the elderly and infirm?

Tags: , , , , , , , , , , , , , , , ,
Posted in Blog Articles, spousal support | No Comments »

BC Law on Varying or Setting Aside Unfair BC Separation Agreements or BC Marriage Agreements 2010 Update

Sunday, April 25th, 2010

We are often asked to review BC separation agreement or BC marriage agreements with a view to setting the BC separation or BC Marriage agreement aside and Shelagh Kinney of our BC Family Law office had a nice win recently in a case on behalf of the wife in L v. L, a BC Supreme Court separation agreement variation 2010 decision.

Our Supreme Court in the Brandsema decision warned spouses that fair agreements made with full disclosure between spouses on an equal footing will be protected but unfair exploitive agreements will not be sanctioned. In Brandsema the Court focussed on non-disclosure by the husband and varied the agreement to give the wife more money on the following basis:

Abella J., speaking for the majority, stated (at paras. 1–6):

“This court has frequently recognized that negotiations following the disintegration of a spousal relationship take place in a uniquely difficult context. The reality of this singularly emotional negotiating environment means that special care must be taken to ensure that, to the extent possible, the assets of the former relationship are distributed through negotiations that are free from informational and psychological exploitation.

…

This appeal, therefore, attracts a spotlight to the duties owed by separating spouses during the process of negotiating and executing a separation agreement for the division of matrimonial assets. In Miglin, based on the inherent vulnerability of spouses during negotiations, this Court stated that in order to safeguard a separation agreement from judicial intervention, a spouse must refrain from using exploitative tactics. It held that the failure to do so, particularly if the agreement fails to materially comply with the objectives of the governing legislation, could well result in the agreement being set aside.

The circumstances of this case move us to consider the implications flowing from Miglin for the deliberate failure of a spouse to provide all the relevant financial information in negotiations for the division of assets. In my view, it is a corollary to the realities addressed by this court in Miglin that there be a duty to make full and honest disclosure of such information when negotiating separation agreements.

The husband’s exploitative conduct, both in failing to make full and honest disclosure and in taking advantage of what he knew to be his wife’s mental instability, resulted in a finding of unconscionability. The trial judge accordingly ordered that the wife be compensated in an amount representing the difference between her negotiated equalization payment and her entitlement under British Columbia’s Family Relations Act, R.S.B.C. 1996, c. 128. On the facts and law, I see no reason to disturb his conclusion.”

Spouses need to approach the settlement negotiations frankly and ensure the opposing party gets independent legal advice. Home made agreements are unlikely to protect either side and a little money and effort spent doing it right the first time will ensure savings on expensive legal fees after the fact.

Lorne MacLean

MacLean Family Law Group Layers and Articled Students

Tags: , , , , , , , , , , , ,
Posted in Blog Articles, Child Support, Divorce Planning, General, Separation Agreements, spousal support | No Comments »

BC Case Alert-Unmarried Couples, BC Marriage Like Relationship and BC Spousal Support

Monday, April 19th, 2010

Lorne MacLean Vancouver BC Divorce lawyer


P.P.W. v. R.S.L.B., 2010 BCSC 58 – 2010/01/15
Is an interesting BC unmarried couples, BC common law and BC marriage like relationship case where the BC Supreme Court had to determine if unmarried parties lived in a “marriage like relationship” for a period of two years sufficient to justify entitlement to a spousal support award. The court viewed the evidence of separate residences, some overnights together, sexual exclusivity, vacations together, no joint bank accounts although there were financial benefits provided tithe Plaintiff as well as the dysfunctional relationship and held while the alleged “wife” wanted there to be a “marriage like relationship the Defendant alleged “husband” did not and the Court dismissed the alleged “wife’s” claim for support and property division under trust law. The Court reviewed the key cases on what needs to be proven to succeed on a common law support claim.

96] The FRA also provides the definition for spouse:
“spouse” means a person who
(a) is married to another person,
(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,
(c) applies for an order under this Act within 2 years of the making of an order
(i) for dissolution of the person’s marriage,
(ii) for judicial separation, or
(iii) declaring the person’s marriage to be null and void, or
(d) is a former spouse for the purpose of proceedings to enforce or vary an order.
[97] The law concerning the definition of spouse under the FRA is quite settled, with Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.), remaining the authority on the matter. The focus of the analysis is on the parties’ subjective intentions to live in a marriage-like relationship, looking to objective factors to assist in this determination. Absent clear evidence of the intention of the parties, no one objective factor is determinative. For the most part, each case is factually unique, and therefore must be judged on its own circumstances.
[98] In Gostlin v. Kergin, the Court of Appeal stated at 267 that upon marriage, individuals assume the support obligations contained in the FRA, and that absent marriage, these obligations should not be thrust upon individuals unless they live together for at least two years as husband and wife in a marriage-like relationship.
[99] Lambert J.A. stated at 269 that when it comes to determining whether an individual is entitled to spousal support under the FRA, it is an all-or-nothing examination:
If the relationship had the characteristics of a true marriage throughout the period of at least two years that is required by the definition of “spouse”, then the parties lived together as husband and wife and there is an entitlement to claim maintenance or support. If the relationship did not have those characteristics, there is no entitlement. And there is no middle ground where the relationship has only some of the characteristics of a true marriage with the result that there is a diminished entitlement. [Emphasis added.]
[100] Takacs v. Gallo, [1998] 9 W.W.R. 235 (B.C.C.A.), provides useful direction to a court in determining if a common-law relationship exists between the parties. Newbury J.A., for the majority, states at para. 53:
The starting point in this province for the analysis required in cases of this kind is the judgment of this court in Gostlin v. Kergin (1986) 3 B.C.L.R. (2d) 264, and in particular, the comments of Lambert J.A. at 267-8 which are quoted in Madam Justice Huddart’s judgment. I read those comments as focusing first on the intentions of the parties to live “as husband and wife”, or in a marriage-like relationship. Such an intention may or may not include financial dependence. The various “objective indicators” referred to in Gostlin were advanced as a means of divining those subjective intentions where the latter “prove elusive”. By the same token, of course, subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such. [Emphasis added.]
And continued at para 55:
In both Gostlin and Fitton, the question of whether persons were living together as spouses notwithstanding that they were not legally married involved the court in an examination of their intentions and not simply an objective assessment of whether their financial and living arrangements were “intertwined”. If the Legislature had intended the latter, it would have been an easy matter to so state. Objective factors will of course be relevant to determine the parties’ intentions as Lambert J.A. noted in Gostlin but those factors will rarely be determinative in and of themselves. Many combinations of people may live together and meet many of the criteria set forth in Molodowich v. Penttinen (1980) 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), but without intending or in fact entering the kind of psychological and emotional union that one associates with marriage. [Emphasis added.]
[101] Thompson v. Floyd, 2001 BCCA 78, is often cited for confirming that despite the change in the wording of the definition of spouse under the FRA, the Gostlin inquiry remains the authority and that other cases are helpful in determining whether a spousal relationship exists, but each case must be judged on its own facts.
[102] This is the legal framework often employed in determining the existence or not of a common-law relationship under the FRA.
[103] In order to establish an entitlement, the plaintiff must prove that she and the defendant lived together in a marriage-like relationship for a period of at least two years prior to the commencement of her claim.

We recommend you contact us immediately if you are considering entering into a marriage like relatiuonship or are in one that is breaking down as there is a1 year time limit to apply for relief.

Tags: , , , , , ,
Posted in Blog Articles, Common Law and Same Sex, Division of Property, Separation Agreements, spousal support | No Comments »

Adultery and Misconduct in BC Divorce and British Columbia Separation

Monday, April 19th, 2010

Lorne MacLean- Divorce Lawyer- brings a Fresh Perspective to Your Case


Many BC divorce and British Columbia Separated parents involved in a BC child custody case think their chances of receiving child custody, more or less support, or a larger share of the family property will change if their spouse has had an affair.

In reality an affair has little if any impact on the issues surrounding marriage breakdown. In the infamous case of Leskun we acted for husband who had had an affair and we were successful in the Supreme Court of Canada in upholding the principle that a spouse’s affair was irrelevant to the issues of spousal support unless it could be proven, supported by medical evidence, that the affair had a negative financial impact the other spouse that prevented them from earning what they normally would have earned. The ability of one spouse to sue the other spouse or mistress for damages for an affair or for “alienation of affection” was long ago abolished in British Columbia. While there still is the ability to sue for damages for physical and mental abuse in British Columbia, the Supreme Court of Canada has narrowed the scope of this claim in their decision of Frame v. Smith.

We warn our spouses that a new relationship during the end of a shaky marriage or immediately after the marriage has broken down can negatively impact a child custody claim if it is shown that the new person is introduced too soon into a relationship or that the new relationship distracts the separating spouse from focusing on their children and putting their children’s interests ahead of their own. A new relationship can also impact and reduce a receiving spouse’s claim for support under some circumstances. We want people to go slow as it is imperative people do not “jump from the frying pan into the fire”.The existence of a new relationship often will not help promote a quick settlement so this is a critical factor to consider as well!

Some people argue that Canada should return to the old fault days of divorce where misconduct resulted in negative consequences to the offending spouse. As an example of what might happen if Canada were to return to the antediluvian days of fault we point to the recent decision in United States below.

Wife’s $9m victory in adultery case warns mistresses to ‘lay off’: Cynthia Shackelford, 60, was awarded the unprecedented sum by a jury in the United States for damages to her feelings under an obscure 19th century adultery law; North Carolina is one of seven states in America where the so-called “alienation of affection” law is still in force. It evolved from common law under which women were classes as property of their husbands. As property, they were something that could be stolen. The award was made against Anne Lundquist, 49, an administrator at a private school, who was accused of having an affair with Allan Shackelford, a 62 year-old lawyer who had been married to Mrs. Shackelford for 33 years. The jury awarded her $5 million compensation and also awarded $4 million in punitive damages to be paid by Miss Lundquist. Miss Lundquist, who is now the dean of students at Wells College, in Aurora, New York, did not attend the court hearing and said she had not even been told it was happening. She is appealing. She said: “I’m so caught off guard by everything. I don’t have a lot of money, so where this $9 million comes from is kind of hysterical.” “My main message is to all those women out there who might have their eyes on some guy that is married to not come between anybody,” Ms. Shackelford told “Good Morning America”. “I wanted other people to understand, before they do it, how much it hurts.” Lee Rosen, of the Rosen Law Firm in North Carolina, said the state has around 200 “alienation of affection” claims a year. He said: “If your spouse is going to cheat, you really would like them to cheat with somebody who has a lot of money.”
As reported in:
Coffee Break – North, Fort St. John, Vol. 1.23 March 27-April 4, 2010

Tags: , , , , , , , , ,
Posted in Blog Articles, Child Support, Custody and Access, Division of Property, Divorce Planning, Procedure, Separation Agreements, spousal support | No Comments »

WHAT INCOME IS USED FOR BC SPOUSAL AND BC CHILD SUPPORT FOR A SELF EMPLOYED BC OWNER OF A BUSINESS?

Sunday, April 11th, 2010

We often warn our family clients involved in a BC spousal or child support case that the tax return of a BC self employed spouse does not present an accurate picture of the income that the court will use for determining guideline income for BC child and BC spousal support. Recent cases presume that pre-tax profits are available to pay child support or spousal support from the company the paying spouse owns unless that spouse proves a need to keep profits in the company to advance legitimate company objectives.

In the recent case of Purvis v. Purvis 2009 BCSC 1794 the husband successfully overcame the presumption that pre-tax corporate income will be imputed to a payor when they own or control a company.

This case involved an action by the husband for a review and retroactive variation of a 2002 order for child and spousal support payments. The husband unilaterally decreased the support payments in 2003. The wife claimed that the husband had failed to make accurate financial disclosure for the annual review, which was a term of the Mediated Settlement Agreement incorporated into the 2002 order. She sought payment of outstanding arrears for support and that the husband’s income include pre-tax corporate profits from his holding company. The husband’s 2007 and 2008 income were the years in dispute.

Retained earnings or funds needed to operate?
The husband claimed that for the purpose of tax planning, the company Praetorian Construction Management (“Praetorian”) paid annual dividends to its shareholders to reduce its retained earnings. The dividends were paid as income to the husband’s holding company Tukcon Holdings Inc. (“Tukcon”). The court examined the pre-tax earnings and the retained earnings for Tukcon, the latter showing a shareholder loan for $730,916 owing from Praetorian. The husband said that Praetorian was not in a position to repay the shareholder’s loan to Tukcon and therefore Tukcon could not pay out the retained earnings balance to its shareholder (the husband).

Application of the law
In applying Section 18 of the Child Support Guidelines the court mentioned Hausmann v. Klukas, 2009 BCCA 32, where it had been held that if there is any evidence of legitimate calls on corporate income for the purpose of continuing the operations of the business the income will not be included in determining annual income thereby “not killing the goose who lays the golden egg” (Baum v. Baum [1999] B.C.J. No. 3025 B.C.S.C.)). The court in Hausmann (supra) said that where a corporation is owned and controlled by the payor spouse, there is a presumption that pre-tax corporate income will be available to a payor in the absence of evidence to the contrary.

Control of the company
In determining who controlled the holding company, Tukcon, the court found that the husband did not present evidence to reveal the extent to which the previous non-voting shareholder (his ex-common law spouse) was involved in the company pre-2009 and that from 2009 he was Tukcon’s only shareholder. Tukcon was one of the 3 companies who owned Praetorian, for whom the husband was the President and the key employee for obtaining new contracts,

Retained earnings required to continue operations
Applying Hausmann (supra), the court found that the husband had to rebut the presumption. On the evidence submitted by the husband’s accountant, the court found that the amount of $700,000.00 in 2007 was legitimately retained by Tukcon to enable Praetorian to continue operations and was not imputed as income to the husband. However, the evidence did not defeat the presumption that the remaining pre-tax profits for 2008 and the pre-tax profits for 2007 and these amounts were imputed as income to the husband.

Support applied retroactively
On another issue, the court cited case law that supports the proposition that retroactive awards should not reach back farther than three years from the date of notice to the payor parent, unless there is blameworthy conduct on the part of the payor D.B.S. v. S.R.G. 2006 SCC 37. The effect of not disclosing a material change in circumstances (his increased income) resulted in the husband having to pay support retroactively to the date when his circumstances changed in 2003. The wife had the reasonable excuse for not bringing her claims earlier of caring for the children and making attempts to become self-supporting.

It is important you call us for advice if you have a support case involving a shareholder, director, or owner of a company.

Jaqua Page

Tags: , , , , , , , , , , , ,
Posted in Blog Articles, Child Support, spousal support | No Comments »

SMART BC DIVORCE TIPS # 6 WINNING BC SPOUSAL SUPPORT AND BC SPOUSAL SUPPORT ADVISORY GUIDELINES VIDEO RELEASED

Wednesday, February 3rd, 2010

BC Spousal Support and the applicability of the Spousal Support Advisory Guidelines for separated spouses is a complex and highly contentious area. Lorne MacLean BC Family Law and BC Divorce Lawyer provides crucial tips to help you avoid common BC spousal support and BC Spousal Support Advisory Guideline mistakes. Do not waive BC spousal support and maintenance or fail to consider the Spousal Support Advisory Guidelines on quantum and duration of support, on the with and without child support formula, on attributed income in disputed spousal support cases, on shared and split custody and on what happens when one party remarries or repartners.

WATCH THE WINNING BC SPOUSAL SUPPORT VIDEO BY CLICKING HERE

Tags: , , , , , , , , , , ,
Posted in Blog Articles, Divorce Planning, General, Home Page Video, Success Stories, spousal support | No Comments »

BC SPOUSAL SUPPORT REVIEW ORDERS AND ATTRIBUTED AND IMPUTED INCOME TO RECEIPIENT SPOUSE AND ONUS AT BC SPOUSAL SUPPORT HEARING REVIEW HEARING

Wednesday, January 6th, 2010

Lorne MacLean Founding Partner and Divorce Lawyer MacLean family Law Group
The Supreme Court of Canada defined the limited situations when a BC spousal support review can be ordered on BC spousal support awards in the Leskun. The British Columbia spousal support review order is still used as a tool to encourage a reluctant spouse to take steps to move in part or in whole towards self- sufficiency.

The recent decision of Reggelsen v. Reggelsen, 2009 BCSC 1790 2009/12/29 follows a line of cases that uses BC spousal support reviews to encourage a spouse to work toward self sufficiency when the spouse is hesitant or refuses to do so without the court nudging them towards this goal by way of reducing a BC spousal support award at the review on the basis of the spousess lack of effort to reenter the workforce.

The cases can specify the terms of review and can place the onus on one spouse to show they have made reasonable efforts to reenter the workforce. The problem remains however in setting the income level a spouse who has refused to enter the workforce can earn. The court must look at the education, work skills and work history as well as evidence of existing jobs the spouse could get and then attribute and income to them pursuant to section 19 of the Child Support Guidelines (they apply to spousal support too!).

Although the Supreme Court of Canada established that reviews should rarely be ordered, the courts in BC have continued to use reviews as a useful tool to allow a court to deal with future issues related to spousal support at a time when the actual living arrangements and income and expenses of the parties will be able to be correctly determined. It is often difficult to predict a career path for a spouse who is reentering the work force after a long period of time or who has health issues that impact on their ability to work or how a payors career might be impaired by a poor economy or changes in the marketplace. The case of Reggelsen applied the review principals to reduce spousal support by a few hundred dollars a month but the court refused to terminate support as the husband requested.

We provide the key case extracts below:
(more…)

Tags: , , , , , , , , ,
Posted in Blog Articles, spousal support | No Comments »

BC SPOUSAL SUPPORT CONSENT ORDERS VARIATION AND MIGLIN TWO STEP TEST FOR VARIATION OF SPOUSAL SUPPORT

Thursday, December 3rd, 2009

In Turpin v Clark the BC Court of Appeal partially allowed a husband’s appeal from a BC spousal support judgment allowing the wife’s upward quantum variation to comply with the Spousal Support Advisory Guidelines of a Consent step down BC spousal support Order. The Court of Appeal set aside the Trial Judge’s Order to increase and extend support and remove clawback clauses for employment income earned by the wife but did extend support for 3 more years beyond the minimum time it was to be paid. The case points out that Consent Orders are really just the embodiment of an agreement between two spouses. The two part MIGLIN test for varying separation agreements applies equally to Consent Orders which requires the Court:
a) first determining whether the agreement was fairly negotiated and fair at the time it was signed; and
b) second, even if this test is met, the court determining whether the agreement remains fair at the time of the variation application- which may be years after the original agreement or Order was signed – and whether it continues to comply with the principles of the Canadian Divorce Act including taking into account advantages and disadvantages to each spouse from the marriage or its breakdown and the need to promote self sufficiency among other factors and objectives.

The Court of Appeal pointed out that factors the parties considered as forseen or expected at the time they made their deal should be listed to assist the court viewing the consent order in the future to assess how fairly the agreement continues to reflect the original intentions of the parties. The Court also commented on the blight of non-disclosure in family law cases and the problems it causes.
(more…)

Tags: , , , , , , , ,
Posted in Blog Articles, Child Support, Separation Agreements, spousal support | No Comments »

HIGH INCOME BC SPOUSAL SUPPORT AND CHILD SUPPORT GUIDELINES CALCULATION AND GROSS UP FOR LOWER TAXES

Tuesday, December 1st, 2009

img_5989BC spousal support and child support awards start with a proper calculation of the BC paying spouses spousal and child support guideline income which can be taken from tax returns, financial statements showing pre- tax corporate earnings. In cases of the paying spouse earning a foreign income, a figure that may be grossed up to reflect a Canadian equivalent income for exchange rate differences and to take into account the income may be received on a tax free basis or on a reduced tax basis compared to the prevailing rates in Canada. Income will often also include bonuses, severance pay and overtime.

The recent Court of Appeal decision of Gonabady-Namadon v Mohamadzadeh dealt with an appeal from a trial judges’s finding that the husband had failed to disclose his true assets and income and had provided no proof of the taxes he paid on income he earned as a resident of Iran nor any proof of what tax rates in Iran were. The trial judge made negative findings against the husband but fixed his income at $250,000 per annum and found that despite the 13 year marriage where the wife had a child she was not entitled to spousal support. The wife was awarded full recovery of her legal fees for the husband’s steadfast refusal to disclose his true income and assets.

The wife appealed and was successful in increasing the guideline income for the husband from $250,000 to $350,000 per annum based on a gross up for lower tax rates in Iran meaning the husband’s available income was much higher than an equivalent similar gross income in Canada. Further, despite the fact the wife was a doctor with the ability to earn a good income the Court of Appeal held she was entitled to spousal support for the low end of the duration being 6 years on a marriage length of 13 years at a monthly payment of $2300.

I have extracted the key paragraphs from the decision below.
(more…)

Tags: , , , , , , , , ,
Posted in Blog Articles, Child Support, Division of Property, General, spousal support | No Comments »

« Older Entries