The B.C. Court of Appeal recently summarized the law regarding a variation of spousal support when a spouse remarries in Zacharias v. Zacharias 2015 BCCA 376.

 

Paragraphs 25 to 30 state:

 

[25]        Canadian courts have recognized three distinct bases upon which a spouse may be entitled to an award of spousal support:  compensatory, non-compensatory, and contractual.

 

[26]        Compensatory entitlement will arise where, as a result of the parties’ roles during the marriage, one spouse has suffered economic disadvantage or has conferred economic advantages on the other. Most often, such entitlement will arise where one spouse has sacrificed career opportunities in order to take on more of the family’s household or child-rearing responsibilities. Upon the dissolution of the marriage, the spouse who has given up opportunities may be entitled to spousal support, either to compensate for diminished earning capacity, or to share in the augmented earning capacity of the other spouse. The main goal of compensatory spousal support is to provide for an equitable sharing of the economic consequences of the marriage (see Moge v. Moge, [1992] 3 S.C.R. 813 at 858–66).

 

[27]        Non-compensatory support entitlement focuses on the needs of the spouses and on their respective means. It is based on the idea that spouses, by virtue of marriage, have some ongoing responsibility to care for one another. The degree to which non-compensatory principles will apply will depend on a close examination of not only the means and needs of the spouses, but also of the nature of the marital relationship and its duration (see Bracklow v. Bracklow, [1999] 1 S.C.R. 420, particularly at para. 53).

 

[28]        Finally, spousal support obligations may arise out of agreements entered into between the parties. There is no contractual basis to the support obligations in this case.

 

[29]        A party applying to vary a support order must demonstrate that there has been a material change in the circumstances of an unforeseen nature since the making of the original order (see Willick v. Willick, [1994] 3 S.C.R. 670; G. (L.) v. B. (G.), [1995] 3 S.C.R. 370). On this appeal, both parties accept that Ms. Hannigan’s remarriage, with the financial implications that it has had, represents a material change in her circumstances satisfying the requirements of s. 17(4.1) of the Divorce Act. Ms. Hannigan’s remarriage has significantly affected her financial situation, and was not in contemplation when the original support order was made.

 

[30]        An application to vary a support order is not a fresh examination of all aspects of the case. A court hearing such an application must accept the original support order as having been an appropriate one. The focus of a court on a variation application is on the change in circumstances, and on how that change should affect support obligations (see L.M.P. v. L.S., 2011 SCC 64 at paras. 22–27 and 47).

 

Paragraphs 38 to 39 state:

 

[38]        When a spouse establishes a basis for spousal support, a court making an initial order must consider a number of factors set out in the Divorce Act in fixing the amount and duration:

15.2(4) In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

(6) An order [for spousal support] should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

 

[39]        These considerations are comprehensive, and take into account factors that would support both compensatory and non-compensatory support. It must be recognized, however, that while there may be more than one basis for a spouse’s entitlement to support, the award is a single and indivisible one. It is not, as the chambers judge implied, made up of a “compensatory” component and a separate “non-compensatory” component. Rather, the whole of the award is available to address both compensatory and non-compensatory goals.

 

Paragraphs 51 to 57 state:

 

[51]        Where such a right exists, courts have not demanded a meticulous accounting of the detriment suffered by one spouse or the benefit received by the other. Such an analysis would be complicated, and expensive to produce, as it would require the engagement of expert witnesses. In Moge, at 871, the Supreme Court of Canada recognized that, for practical reasons, less rigorous proof must be accepted:

[S]pousal support orders remain essentially a function of the evidence led in each particular case. In some cases, such evidence might come in the form of highly specific expert evidence which enables parties to present an accurate picture of the economic consequences of marriage breakdown in their particular circumstances. (See Ormerod v. Ormerod (1990), 27 R.F.L. (3d) 225 (Ont. U.F. Ct.), and Elliot v. Elliot (1992), 42 R.F.L. (3d) 7 (Ont. U.F. Ct.).) Although of great assistance in assessing the economic consequences of marriage breakdown in a particular marriage, such evidence will not be required nor will it be possible in most cases. For most divorcing couples, both the cost of obtaining such evidence and the amount of assets involved are practical considerations which would prohibit or at least discourage its use. Therefore, to require expert evidence as a sine qua non to the recovery of compensation would not be practical for many parties, not to mention the use of court time which might be involved.

 

[52]        The practice that has developed is referred to by Professors Rogerson and Thompson in their notes entitled The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version (2010). They say, under the heading “Entitlement as a threshold issue” and subheading “Compensatory claims”:

While compensatory claims in theory require an individualized assessment, in practice, in long marriages with children, the marital standard of living is used as a proxy measure of compensatory gains and losses.

 

[53]        The practice was also mentioned, with apparent approval, at para. 34 of this Court’s judgment in Morigeau v. Moorey, 2015 BCCA 160.

 

[54]        Where entitlement to compensatory support is established, and the marriage has been a long one, the marital standard of living is often a reasonable measure of appropriate compensation. It represents the standard that the parties themselves established as a result of each individual’s sacrifices and advantages during the union, and will often represent the standard that they could have expected to maintain if the marriage had not broken down.

 

[55]        In saying this, I do not imply that this measure will always be determinative of the amount of spousal support. All of the factors set out in s. 17(7) must be considered by a judge in fixing appropriate spousal support. As was said in Moge at 866-67:

The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in the Act in order to achieve equitable sharing of the economic consequences of marriage or marriage breakdown. This implies a broad approach with a view to recognizing and incorporating any significant features of the marriage or its termination which adversely affect the economic prospects of the disadvantaged spouse.

 

[56]        It should be remembered, as well, the payee spouse, no less than the payor, is entitled, if possible, to maintain a standard of living similar to that enjoyed during a long marriage. Where the resources of the parties are not sufficient to allow both to enjoy that standard, it will usually be reasonable to equalize the deficit and allocate resources so as to allow each party to enjoy a similar standard of living.

 

[57]        That said, there is no specific formula that can be applied to these cases, and specific factors unique to individual cases may justify other measures of support.

 

 

Deborah A. Todd
Deborah A. Todd