A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Incomes over $350,000.00: Spousal Support Advisory Guidelines

I receive a weekly e-mail from Supreme Court Advocacy (a boutique law firm in Ottawa focusing on Supreme Court of Canada advocacy and agency).

The newsletter from Supreme Court Advocacy is a great resource and provides an up to date summary of activity at the Supreme Court of Canada.

Earlier in March, this newsletter provided a very good summary of the case of Hathaway v. Hathaway (2014 BCCA 310).

In this case, Mr. Hathaway (a high income earner) had been ordered, by the British Columbia Supreme Court, to pay child support of $12,814.00 per month and spousal support of $24,124.00 per month. At the trial level Mr. Hathaway’s income was determined to be one million dollars a year by the Honourable Mr. Justice Abrioux.

Mr. Hathaway appealed this decision and the British Columbia Court of Appeal denied his appeal.

Mr. Hathaway, at the Court of Appeal, contended that the trial judge erred in three respects (failing to consider Section 11 (which sets a ceiling for incomes over $350,000.00 per annum) and Section 12 (relating to property division) of the Spousal Support Advisory Guidelines, failing to consider the provisions of the Federal Child Support Guidelines regarding incomes over $150,000.00 (Section 4), and the principles relating to reapportioning family assets). Mr. Hathaway’s appeal was dismissed by the Court of Appeal and leave to the Supreme Court of Canada was also dismissed.

The case of Hathaway highlights the importance of considering/arguing Section 4 of the Federal Child Support Guidelines and Section 11 of the Spousal Support Advisory Guidelines at a trial level. A failure to do so will limit the ability to make such arguments or considerations at an appeal level (as per paragraph 34 of the Court of Appeal Decision).

The upshot of this case, from my perspective, is:

  • Reading the Child Support Guidelines and the Spousal Support Advisory Guidelines is a free and useful exercise if support issues are at play in your family law matter (regardless of your income);
  • If you are dealing with a case where incomes are over $150,000.00 per annum pay special attention to Section 4 of the Child Support Guidelines;
  • If you are dealing with a case where incomes are over $350,000.00 per annum pay special attention to Section 11 of the Spousal Support Advisory Guidelines;
  • It is helpful to get advice from an accountant in a case where you are working to determine an appropriate guideline income for support purposes (I encourage my clients to consult with an accountant regarding determination of income for support purposes regardless if they are paying or receiving support – it is very helpful); and
  • This is a first world problem to have…
    Guideline income

  • Divorce: how long does it take?

    Kim Kardashian separated from Kris Humphries after 72 days of marriage, but 365 days later, the divorce proceedings are still inching towards trial.

    As reported in the Vancouver Sun:

    Superior Court Judge Stephen Moloney told attorneys for Kardashian and NBA player Kris Humphries to return to court in mid-February to set a trial date to either dissolve or annul the couple’s 72-day marriage. He didn’t set a deadline for depositions and other pre-trial investigation to be completed, but indicated a trial could be held early next year if it is ready by Feb. 15.

     So how long does it take to get a divorce?

    Legal time requirements for divorce are different in different countries.  In Canada, the Divorce Act sets out that a court can grant a divorce if there has been a breakdown of the marriage.    A breakdown of a marriage is described in Section 8 of the Divorce Act as:

    8(2) Breakdown of a marriage is established only if

    • (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
    • (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
      • (i) committed adultery, or
      • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

    So, in Canada, you have to have lived separate and apart from your estranged spouse for one year prior to a divorce being granted unless there has been adultery or cruelty (as a note, if you are proceeding on adultery or cruelty there are specific evidentiary requirements that must be met).  After the year of separation, the process of getting the actual divorce usually between a couple of weeks and a couple of months if it is uncontested.  A breakdown of the timeline and steps can be found on JP Boyd’s family law resource.

    Also, the Divorce Act sets out that a court in a province may only grant a divorce if one of the spouses has been ordinarily residence in that province for one year immediately preceding the commencement of divorce proceedings.

    If a divorce can be finalized after one year of separation, why are my divorce proceedings entering year three?

    The answer is, quite simply, if you agree on everything, and you file all of the right paper work, correctly filled out, at the  correct time and in the correct place, your divorce will move along quickly.

    As summarized by the Ministry of Justice:

    A divorce is relatively easy to get if your reason for the divorce is that you have been separated for a year or more and:

    • you both agree that you want a divorce, and you are not asking the court to settle any other issues, such as custodyaccess or support (this is usually called an “uncontested” divorce), or
    • you both agree that you want a divorce and agree on all other details, such as custody and support (this is called a “joint divorce action”), or
    • you alone are asking for a divorce and for the court to settle other issues, such as custody and support, and your spouse does not dispute the divorce or any of the issues.

    A divorce is more complicated to get if your reason for the divorce is cruelty or adultery or your spouse decides to dispute the divorce or any other issues. This is often called a “defended” divorce.

    It is when there are issues of disagreement that a divorce can span out longer periods of time.  For example, in the 2008 British Columbia Court of Appeal decision, Laxton v. Coglon, deals with a case in which divorce proceedings had been ongoing since 2001.

    New Yorker Cartoon by Tom Cheney

     

    Each family is different.  The length of time it takes to resolve the issues involved in your divorce will vary from others you know.

    Family Law: access for grandparents

    Are grandparents able to get court orders for access to their grandchildren?

    The answer is yes.  In British Columbia, third parties (for example grandparents) can get court ordered access to children.

    Section 35 of the Family Relations Act provides that grandparents of a child  may apply to the court to exercise custody over a child or have access to a child.

    Seciton 16 of the Divorce Act provides that the court can make an order recpecting custody or access if an application is made by a spouse, or any other person.

    The new Family Law Act provides in Section 59 that the court may grant contact to any person who is not a guardian, including grandparents.

    The British Columbia courts have set out some considerations  in case law, for example Chapman v. Chapman to guide an analysis of what is in a child’s best interest when assessing third party access claims:

    • The court should be reluctant to interfere with the custodial parent’s decision on access and should do so only if it is satisfied that it is in the child’s best interest to do so;
    • It is not in the child’s best interest to be exposed to a real conflict between a custodial parent and a third party (however the court should be aware of cases where parents may be arguing there is a conflict or potential conflict to beat an access application that has merit).

    It is the onus of the party seeking access to a child to show that the access they are proposing is in the best interest of the child.  A court may also consider what the child thinks about access if they are old enough.

    (Meet the Fockers – different grandparents = different parenting styles ~ NOTE: safe for work)

    If you are a grandparent seeking acecss to your grandchild, there are some useful resources online that you can consult for free, including:

    Interestingly, the summary of case law by the Department of Justice looks at how the courts have treated access claims by grandparents differently in circumstances where the families are “intact” and “not intact”.  The Department of Justice articles summarizes their review:

    The case law above seems to suggest that the courts may use their jurisdiction to maintain existing relationships between grandparents and grandchildren when the acrimony between the parents and grandparents is not so strong as to place the children in an untenable position.  However, the courts are unlikely to create or establish relationships when none previously existed, against the wishes of a parent.

    Welcome 2012: changes to the child support tables

    2012 is here and there are already changes you should know about in regard to calculating child support.

    The Federal Child Support Guidelines have been amended as of December 31, 2011 for ongoing child support.  A summary of the changes and a useful question and answer can be found online.

    The new tables can also be found on the Government of Canada’s website as well as a child support calculator.  In revisiting child support obligations and amounts it is also important to gather and exchange your 2011 income information as required by any agreemetns or court orders you have in place.