THE ADVISORY GUIDELINES 16 MONTHS LATER:
CASES, CRITICISMS AND RESPONSES, REVISIONS
Rollie Thompson and Carol Rogerson
A. SOME CASES
1. Appellate Decisions
Yemchuk v. Yemchuk, [2005] B.C.J. No. 1748, 2005 BCCA 406 (B.C.C.A.)(Prowse J.A.)
Married 35 years, one grown child, husband 63 at trial, wife 61.
Family assets divided equally, trial judge found no entitlement to spousal support
Entitlement found on appeal, both compensatory and non-compensatory grounds
Engineer husband retired early in 1997, as wife transferred to Manitoba in federal government
No issue as to duration, as husband only claiming support until wife retired at 65
Husband ‘s income $37,600, wife makes $75,000
Guidelines range under without child support formula: $1,190 to $1,580
Guidelines “a useful tool to assist judges”, “intended to reflect the current law” citing W. v. W.
Extensive discussion of Guidelines issues, not evidence but part of counsels’ submissions
Support fixed at $1,100, to reflect wife’s “expenses relating to employment (including clothing, transportation expenses and significant compulsory employee deductions)”
Tedham v. Tedham, [2005] B.C.J. No. 2186, 2005 BCCA 502 (B.C.C.A.)(Prowse J.A.)
Married 16 years, wife now 52 (47 at separation), husband now 47, traditional marriage
Two children, 20 and 21, “deemed independent”, direct support from husband
Wife earns $25,000 part-time retail, income imputed of $30,000
Husband estimated to earn $343,000 in computer software sales
Payment by husband of $95,850 to reapportion property
Was paying $1,589 child support and $4,000 spousal to wife
Chambers judge ordered dimishing time-limited support for 3 more years
$6,000/mo. year 1, $4,000 year 2, $2,000 year 3, then zero, to encourage self-sufficiency
No time limit, only partial compensation, indefinite order substituted, subject to
review if husband’s medical condition (legal blindness) interferes with income
Amount fixed at $6,000, Guidelines range stated as $6,300 to $8,500 for 8 to 16 years
Lower than range because of reapportionment order
(Without child support range: $6,260-$8,347, if incomes as stated)
[Custodial payor formula range (no child support from wife): $4,712-$6,283]
Kopelow v. Warkentin,[2005] B.C.J. No. 2412, 2005 BCCA 551(C.A.)(Smith J.A.)
Married 12 years (plus one year cohab), 2 children 15 and 13, with wife
Wife earns $30,000, now 55 (49 at separation), husband earns $177,000
Wife challenging marriage agreement property division, 78 per cent to husband
Child support $1,995, wife also entitled to spousal support
Range $3,037-$4,015, $3,500/mo. ordered
With these support amounts, marriage agreement not unfair
G.V. v. C.G., [2006] J.Q. no. 5231 (Que. C.A.) (Forget J.C.A.)
Married 32 years, 3 children, one (18) now with husband, custodial payor
Wife 55, earning $50,000, husband earns $227,000
Child support $15,948, grossed-up to $33,000
Trial judge applied Advisory Guidelines: range $4,500 to $6,000; low end of range ordered, $4,500 indefinite
Trial judge erred by not engaging in a detailed individual analysis
Court states that [TRANSLATION] « the dossier as it is and the brief pleadings of counsel on this aspect do not permit us, in my opinion, to pronounce a judgment of principle upon the utilisation of the Advisory Guidelines. » Court refers to important criticisms of Advisory Guidelines found in judgments of Justices Julien and Gendreau [see cases below] and concerns about « recipes »and formulas being used to avoid the difficult individual analysis required.
Toth v. Kun, [2006] B.C.J. No. 739, 2006 BCCA 173 (C.A.) (Hall J.A.)
Interim support $2,300/mo., varied to $2,400 in April 2003
Wife health problems, but will recover, poor English
Husband earned $70,000, but now retired, only $42,000
At trial: support varied to $1,500, indefinite
On appeal: too onerous, so time limited, step-down
$1,200/mo. to Sept. 2006, then $1,000/mo. to Sept. 2009, support paid 6 ½ years
Range $525-$700, 5 to 10 years [within global range on restructuring]
S.C. v. J.C., [2006] N.B.J. No. 186, 2006 NBCA 46 (N.B.C.A.)(Larlee J.A.)
Married 25 years, two adult children, wife 42 (40 separation), husband 45, traditional marriage
Husband army officer, earns $100,000
Wife working in Kingston, Ont., Health Ministry, earns $46,764
Trial judge ordered $1,625/mo., using Advisory Guidelines, for 5 years
Appeal dismissed, Guidelines approved, help to bring consistency and predictability
Trial judge used low end of range, income issues raised by wife
Almost a presumption of indefinite support, review favoured here ordinarily over time limit
But deference to trial judge: wife young, no dependents, capable, steady employment
Wife quickly able to reintegrate into work force, 5 years a longer term
2. The Without Child Support Formula
Leading Decisions
Carr v. Carr, [2005] A.J. No. 391, 2005 ABQB 265 (Alta.Q.B.)(Veit J.)
Interim spousal support, 28 year marriage, 3 adult children, wife 51
Husband makes at least $150,000, wife $9,300 disability
Without child support formula explicitly used
Range $4,397-$5,863. $5,000 ordered.
General reference to use of guidelines as “cross-check”
Modry v. Modry, [2005] A.J. No. 442, 2005 ABQB 262 (Alta.Q.B.)(Germain J.)
Guidelines argued by wife’s lawyer, husband’s income $1,266,000
29 year marriage, 4 grown children, income imputed to wife
Discussion of guidelines, but this above $350,000 ceiling, $9,900 ordered
Maitland v. Maitland, [2005] O.J. No. 2252 (Ont.S.C.J.)(Pardu J.)
Married 29 years, 4 adult children, wife 45 at separation
Wife has health problems, can’t work, no income
Husband works as truck driver, $28,439
Interim support $1,344, husband also pays $135/mo. for wife’s health insurance
Range $889-$1185 (or $754-$1050 deducting health ins.)
Exception for payor income $20-$30,000 noted, concerns re ability to pay
Support of $700 ordered
A.M.R. v. B.E.R., [2005] P.E.I.J. No. 83, 2005 PESCTD 62 (S.C.T.D.)(Matheson C.J.T.D.)
Together 11 years (married 4), no children, husband seeks interim spousal support
Husband receives WCB $11,858 non-taxable, grossed up to $13,525
Wife earns $18,557, also paying family debts
Below “floor” of $20,000, no ability to pay, no support
(Range by formula: $69-$92)
McCulloch v. Bawtinheimer, [2006] A.J. No. 361, 2006 ABQB 232 (Q.B.)
(Sullivan J.)
Together 6 years, “adult interdependent partners”
Husband earns $103,000, pays $15,600/yr. in prior spousal support (exception)
Wife earns $27,216, gross income difference $60,184
Range $451-$602, for 3-6 years, global amount $16,250-$43,332
Detailed explanation of Guidelines and restructuring
No compensatory exception, no debt payment exception
Orders $2,000/mo. for 9 mos., $1,000/mo. for 9 mos., $500 for 7 mos., total $29,500
Other Trial Decisions
Stewart v. Tudorachi, [2006] O.J. No. 898 (S.C.J.)(Platana J.)
Together 22 years, no children, wife 50 (47 at separation), husband 48
No unjust enrichment, house in both names, sold and proceeds divided equally
Wife not worked since 1996, fibromyalgia, separated 2003, now student
Grade 12 equivalency, finished in 2008, then intention to do 3-year program
Husband married, 2 step-children, wife earns $47,000 as teacher
Husband earns $75,209, interim support $2,400/mo.
Guidelines range $2,004-$2,673, husband offers $1,800
Order for $2,250, review in 2008
Santoro v. Santoro, 2006 BCSC 331, [2006] B.C.J. No. 453, (S.C.) (Powers J.)
Married 18 years, 3 children with wife, adults now (25, 24, 20)
Wife 50 (39 at separation), husband 53
Husband machinist, working in NWT, $100,000
Husband remarried, new wife not working, her 2 children (21/17)
Wife disabled (back), agreed to lump sum support of $20,000 and dismissal in 1994
Now on CPP Disability $8,600/year
Miglin analysis, 2nd stage, variation
Guidelines of “limited use”, range $2,057-$2,742, but prior agreement
$1,200 per month ordered, review in 2 years
Girouard v. Girouard, 2006 CarswellOnt 1089, [2006] O.J. No. 762 (Sedgwick J.)
Married 38 years, wife 57, husband 62, 2 adult children
Wife on CPP Disability, $6,960/yr., many medical problems, seeks $1,000/mo.
Husband retired from Armed Forces, $26,846, lives with new partner in her house
Recently resigned as rural mail carrier ($18,711/yr.)
$625 ordered, indefinite (range $621-$828)
Barter v. Barter, 2006 NLCA 13, [2006] N.J. No. 52 (C.A.) (Welsh J.A.)
Husband’s notice of appeal struck
Judge indicated would be guided by Advisory Guidelines, hearing adjourned
Parties returned with settlement, husband now appealing consent order
Trial judge could not have “misapplied” Guidelines
Bourget v. Bourget, [2006] O.J. No. 419 (S.C.J.)(Smith J.)
Married 27 years, wife 51 (49 at separation), husband 52, no children
Husband earns $32,500 as janitor
Wife receives $8,124 on CPP Disability
Range $775-$1,007, wife seeks $1,000, but lower incomes involved
Interim support of $600 ordered, based upon Mackinnon paper, 40% NDI to wife
Rzepa-Burke v. Burke, 2006 MBQB 16, [2006] M.J. No. 29 (QBFD) (Clearwater J.)
Married 4 years, no children, wife 45 (43 at separation), husband 56
Husband disclosed, but then self-represented and no show at trial
Husband earns $45,000, wife $1,000/yr. (?), wife seeks indefinite support
Range $300-$325, for 52 months, $16,900 maximum
Husband paid $7,800 already interim, plus $600 arrears owing
Order $500/mo., review in one year, issues re wife’s employment efforts
S.(D.) v. Sc.(Ma.), No. 500-12-267344-038, 27 janvier 2006 (C.S.)(Julien J.)
Married 22 months, cohabited 2 years, husband 77, wife 48 (45 at separation)
Interim support $3,000/mo., wife seeking $4,000/mo.
Husband got wife to quit job, paid her $3,300/mo. from his company
Wife earned $30,000 before marriage
Husband’s income not disclosed, but assets $12.7 million, ability to pay
Husband argues Advisory Guidelines, criticisms of Guidelines, rejected
Support of $3,000/mo. ordered, until Sept. 2006 (43 months paid)
(Husband’s income above ceiling, but if $600,000, range would be $3,000-$4,000)
Upshall v. Upshall, 2006 CarswellNfld 21, 2006 NLUFC 5 (U.F.C.)(Dunn J.)
Married 22 years, 7 children, separated 1983 when wife 47, husband 49
1983 separation agreement: child support $650, spousal support $650
1987 divorce order: support $750, then $650 spousal only after last child 19
Spousal support varied down to $225 in 1992, now husband applies to terminate
Wife lived on social assistance and support, now OAS/FIS $12,238
Husband earning $42,015, remarried 1987, wife earning $11,648, 16-year-old son
Change in circumstances, but no variation, $225/mo. continued plus $100 on arrears
Amount less than ranges under formula
(Range would be $819 to $1,092, indefinite)
(Or range could be $637 to $850, if husband’s income reduced for subsequent child)
Elias v. Elias, [2006] B.C.J. No. 146, 2006 BCSC 124 (S.C.)(Bennett J.)
Married 24 years, wife 48 (47 separation), husband 50, 2 children out of home
Husband claims spousal support
Husband earns $50,000 in construction, building own house, cash jobs, in-kind bonuses
Wife earns $87,000 as lab tech, blip in overtime, $60,000 without overtime
No entitlement to spousal support, no requirement of equalization under Guidelines
(Range $312 to $416, indefinite)
Barrick v. Barrick, [2006] O.J. No. 219 (S.C.J.)(Mazza J.)
Married 33 years, children ?, income issues
Husband receiving WSIB grossed up to $40,000
No imputing income for failure to appeal unfavourable decision
No income imputed from alleged marijuana grow-op
Wife makes $14,300 from CPP disability, part-time work, investment income
Range stated by husband’s lawyer as $555 to $740, rejected as too low
Spousal support of $1,000 per mo. ordered, to equalize incomes
(Range actually $803 to $1,070, indefinite)
MacElwain v. MacElwain, [2006] N.B.J. No. 13, 2006 NBQB 19 (Q.B.)(d’Entremont J.)
Married 32 years, 3 adult children, traditional marriage, wife 61 (59 separation)
Equal division of sizeable property
Interim spousal support since 2003 of $4,500/mo.
Range stated as $5,405 to $7,207
$5,500 ordered, indefinite, review at husband’s retirement
Ahn v. Ahn, [2005] B.C.J. No. 2742, 2005 BCSC 1745 (S.C.)(Master Taylor)
Together 14 months, married 8 months, husband 57, wife 46
Husband earns $154,885, wife nothing
Wife left job in Washington State, earning $47,000 U.S., unable to work in Canada
Husband wanted executive assistant and wife
Interim spousal support of $3,500/mo. plus rent-free in house (husband pays $2,200/mo.)
Wife relies upon “compensatory exception” in Guidelines
Toews v. Toews, 2005 CarswellAlta 1885 (Q.B.)(Cairns J.)
Married 34 years, 2 adult children, wife 58 (55 separation), husband 58
Husband runs air charter business, earns $100,000
Wife at home, did bookkeeping in business, now no income
Interim spousal support $1,200 plus home expenses (2002), $4,800/mo. (2004)
Equal division of property
Spousal support of $3,500 indefinite, “well within the range”
(Range $3,125 to $4,166 indefinite)
Simpson v. Simpson, 2005 CarswellOnt 7025, [2005] O.J. No. 5119 (S.C.J.)(Cusinato J.)
Married 26 years, 2 children adults, wife 48 (46 separation), husband 50
Interim spousal support $1,500/mo.
Wife earns $18,050 driving school bus, etc.
Husband truck driver, income imputed, could work more, earn $60,000
Adopts ChequeMate mid-point, $1,531/mo., indefinite
(Range $1,311 to $1,748 indefinite)
Galambos-Towers v. Towers, 2005 CarswellOnt 6953 (S.C.J.)(Lofchik J.)
Together 16 years (married 12)
Wife receives $46,190 from CPP and disability pension, cancer after separation
Husband earns $38,554 plus $20,500 imputed return on assets, for $59,054
Top end of range stated as $182, orders $200 indefinite (range $138 to $171)
Collin v. Collin, 2005 CarswellOnt 7754 (S.C.J.)(Fragomeni J.)
Married 29 years, 2 adult children
1998 separation, spousal support $2,600, then $1,800 in 1999, then suspended
2002 order for $1,000/mo., terminating review order for 24 months
Wife earns $32,850 at WeightWatchers and dog sitting
Husband earns $50,000, disabled wife receives $6,000/year
Wife states range as $594 to $792 indefinite (range seems to be $536 to $714)
Spousal support continued, at $500/mo. indefinite
Chepil v. Chepil, [2006] B.C.J. No. 15, 2006 BCSC 15 (S.C.)(Ehrcke J.)
Married 24 ½ years, 3 grown children living with father, wife 46 (44 at separation), husband 52
Husband earns $63,000 as deputy sheriff, will retire at 57
Wife retrained as radiographer, recently started job at $55,000, student loans of $16,000
2003 do-it-yourself agreement valid, wife waives pension and spousal support claims
Pension waiver not “unfair”, Miglin applied, wife seeks $600/mo.
Advisory Guidelines considered, $250/mo. for 3 years, to assist wife to pay off loans
(Range $250-$333, indefinite)
Guzman v. Guzman, [2005] A.J. No. 1840, 2005 ABQB 908 (Q.B.)(Lee J.)
Married 35 years, traditional marriage, 3 grown children, both spouses 55
Husband earns $80,000 as heavy equipment operator, wife not employed outside home
Husband paying debts $1,820/mo., mostly matrimonial debts (about $1,500/mo.)
Indefinite order, range stated as $2,331 to $3,107
Debt payments deducted from husband’s income
Spousal support of $1,600/mo. equalizes incomes after adjustment for debt payments
Reitsma v. Reitsma-Leadsom, [2005] O.J. No. 5577 (S.C.J.)(Mazza J.)
Together 7 years, married 4, no children
1998 separation, interim order for $1,200, then 2001 order for $840/mo.
Husband brain injured, receives CPP and WSIB (not-taxable), gross income $39,084
Wife also brain injury (1982), other health problems, unemployable, no income
Application by husband to terminate, by wife to increase, spousal support
Support continued, not reduced from $840/mo.
Ordinarily would terminate after 7 years, following Bracklow
But not here as wife totally disabled and incident of violence by husband
Advisory Guidelines not sufficient reason to vary downwards
(Range would be $342 to $456, for 3.5 to 7 years)
Matthews v. Matthews, [2005] B.C.J. No. 2666, 2005 BCSC 1692 (S.C.)(McCallum J.)
Together 9 years (married 8), no children of marriage, wife 40 (39 at separation, husband 44
Wife earns $17,000 in Victoria, one son of previous relationship
Husband moved to Switzerland, earns $141,000 to $166,000
Husband pays child support of $1,450 for a previous child
Wife claims $4,500 interim spousal support, to equalize incomes
Husband says $1,400-$1,800 based on Guidelines
Entitlement, based on need and possibly compensation (left to trial)
Quantum of interim support should bear some relationship to final order
Interim support of $2,000/mo. ordered
(Range if husband’s prior child support deducted and $166,000 income: $1,328-$1,770)
(Range without deduction, $166,000: $1,676-$2,235)
McNamara v. Infantino, [2005] O.J. No. 5148 (S.C.J.)(Henderson J.)
Application to vary, 2004 order $1,800 spousal support, no details of marriage
Husband’s income reduced from $80,000 to $43,710 upon retirement
Wife no income, applications to CPP and LTD plan for disability
Guidelines considered to reduce support to $1,275/mo.
H.E.H. v. S.L.H., [2005] N.S.J. No. 472, 2005 NSFC 19 (F.C.)(Levy J.F.C.)
Married 32 years, 2 adult children, wife 51
Wife housecleaner part-time, earns $5,400
Husband machine operator, earns $30,636, new partner
Support fixed at $840/mo., 40% of gross income difference
Based on husband’s low income, his payment of medical/drugs for wife, new partner
(Range: $789-$1,051)
Larocque v. Larocque, [2005] S.J. No. 695, 2005 SKQB 440 (Q.B.)(Sandomirsky J.)
Together 19 years (married 6?), wife 36
Husband earns $58,000, wife earns $13,000 maximum cleaning
Wife entitled to non-compensatory support
Low end of range would be $1,067 (high end $1,425)
Wife seeks $1,000, granted
Wife’s school program finished in 2-3 years, but no time limit, indefinite
Gosling v. Gosling, [2005] B.C.J. No. 2421, 2005 BCSC 1580 (S.C.)(Williams J.)
Married 14 years, 2 children 24 and 22, with mother, not “children of marriage”
Separation in June 1992, wife 39 then (52 now), relationship continued after separation
Property reapportioned, home 72/28 to wife, husband’s pension 30% to wife
No retroactive spousal or child support, previous agreements
Wife earns $31,090, husband earned $86,262 in 2003 (2004 unusually high)
Guidelines mentioned, spousal support of $1,000/mo., indefinite
(Range by Divorcemate: $966-$1,287)
Poirier v. Poirier, [2005] O.J. No. 4471 (Ont.S.C.J.)(Charbonneau J.)
Married 34 years, 2 children
Husband earns $420,000 from businesses, wife $10,800 in interest income
Husband’s income fixed at “ceiling” of $250,000, wife imputed income of $50,000
Support of $7,000/mo., indefinite (40 per cent of gross income difference)
Law v. Law, [2005] A.J. No. 1315, 2005 ABQB 723 (Alta.Q.B.)(Clackson J.)
Married 35 years, 2 adult children, husband 57, wife 55
Husband earns $131,000, wife $51,000
Range $2,500-$3,333 (37.5 to 50 per cent), indefinite
Order for $3,000, to cease when husband retires and pension divided
To continue at 45 per cent of gross income difference
Nasby v. Nasby, [2005] S.J. No. 619, 2005 SKQB 422 (Sask.Q.B.)(Wilkinson J.)
Married 24 years, 4 children, youngest unemployed and with mother
Wife earns $14,195 as bartender, husband earns $72,779 (est.)
2001 agreement: $669 child support, $1,331 spousal support, $2,000 “cap”
Range $1,831 to $2,491 if 2004 incomes used
Or $1,344 to $1,792 if estimated lower incomes for 2005 used
Order of $2,000 maintained on interim basis until trial
Cunningham v. Montgomery-Cunningham, [2005] O.J. No. 4297 (Ont.S.C.J.)(Fragomeni J.)
Married 22 years, 1child 20 and independent
Wife says husband’s 2004 income $347,000, income at least $139,000
Wife’s income $101,800, says husband, at least $92,200
Order of $1,500 interim, “guided by” Guidelines
[Range estimated as $1,292 to $1,733]
Morash v. Morash, [2005] S.J. No. 618, 2005 SKQB 411 (Sask.Q.B.)(Wilkinson J.)
Married 31 years, 1 child now 27
Wife homemaker, now educational assistant, earns $20,674
Husband earns $73,263, made voluntary non-deductible payments of $1,441/mo.
Range stated as $2,037 to $2,717, order for $2,250 interim
Hesketh v. Hesketh, [2005] O.J. No. 4053 (Ont.S.C.J.)(Heeney J.)
Married 17 years, wife 54 (49 at separation)
Entitled on compensatory (many moves and lost job) and non-compensatory grounds
Wife earns $13,000, working 35 hours per week
Husband earned $85,667 in 2004
Interim voluntary support of $1,500
Range $1,544 to $2,059, indefinite (rule of 65)
Husband’s new partner makes $56,000, reason to go higher than range
Order for $2,200, indefinite, plus $424/mo. for 10 years for equalization payment
Rossi v. Rossi, [2005] O.J. No. 4136 (Ont.S.C.J.)(Flynn J.)
Married plus cohabited 23 months, husband and wife both 48
Voluntary support of $5,400 total over 4 months, then $2,000 interim for 15 mos.
Wife disabled, CPP plus business $16,000
Husband earns $71,000 plus
Maximum guidelines range $224 for 23 months, or $5,152, vs. $35,400 paid
Husband paid enough, support terminated
Adams v. Adams, [2005] O.J. No. 4117 (Ont.S.C.J.)(Platana J.)
Together/married for 10 years
Husband workers compensation $28,295 tax-free
Wife accident benefits and business $11,830 tax-free
Wife seeks $299 mid-point of range $256-$341
[Range $295-$393 if incomes properly grossed up]
Guidelines rejected and lower amount of $75/mo. ordered
Zedi v. Ristic, [2005] O.J. No. 3827, 2005 ONCJ 250 (Ont.C.J.)(Spence J.)
Married 9 years, no children, wife 59 and husband 46 at separation, wife now 63
Husband earns $32,500 as machinist, but “self-employed”, so taxed on $10,000
Wife makes $10,000-$13,000 at deli
Guidelines range stated as $208-$278, “too low”, $500/mo. ordered, indefinite
(If husband’s income grossed up for tax position, range would be $367-$489)
Woodall v. Woodall, [2005] O.J. No. 3826, 2005 ONCJ 253 (Ont.C.J.)(McSorley J.)
Married 11 ½ years, wife 42 and husband 33 at separation
Wife disabled, husband paid $1,200 every 2 weeks under 2002 separation agreement
Now $1,264 with COLA plus drug coverage
Husband earned $89,500 in 2002, then $115,000 in 2004
Changed to less stressful job paying $90,700, application to vary to reduce
Husband paying unconsolidated debts, new common-law wife not working
Guideline ranges ($1,565-$2,086) no application because of agreement
No variation clause, no Miglin, no change in circumstances
Gerlitz v. Gerlitz, [2005] A.J. No. 1132, 2005 ABQB 621 (Alta.Q.B.)(Veit J.)
Interim support, adjourned to trial, Guidelines don’t apply to entitlement
Married 25 years, parented sister’s children (now grown up)
Wife teacher, earns $80,000, assets of $359,000 plus pension and RRSPs
Husband engineer earns $200,000 (closer to $80,000 at separation), assets of $251,000
M.K.M. v. T.L.M., [2005] B.C.J. No. 1956, 2005 BCSC 1040 (S.C.)(McCallum J.)
Interim support, married 8 years (plus cohabitation), no children
Husband 47, some medical problems, no income
Wife earns $54,000, range stated to be $888-$1184
Carr cited, $1,200 ordered,”at higher end”, encouraged to seek employment
Bishop v. Bishop, [2005] N.S.J. No. 324, 2005 NSSC 220 (N.S.S.C.)(LeBlanc J.)
Together 13 years, 12 married, no children, wife 47 at separation
Wife health problems, irritable bowel syndrome, depression, etc., unable to work
Husband corporal in Armed Forces, earns $57,300, cohabiting with partner and her 2 children
Range reported as $1,188-$1,584 (but actually $931-$1,241)
$1,000 per month, for 10 years (11 in total), ordered
Pearce v. Pearce, [2005] B.C.J. No. 1757, 2005 BCSC 1153 (B.C.S.C.)(Dohm J.)
Married 30 years, 4 grown children, wife homemaker, 50 at separation
Husband makes $101,000, wife earns $25,000 from own business
Variation, $500 ordered previously, on assumption husband paying $405,000 debt
Range $2,375-$3,166, used as “cross-check”
$2,000 ordered monthly, plus $65,000 retroactive lump sum
Proctor v. Proctor, [2005] B.C.J. No. 1585, 2005 BCSC 1063 (B.C.S.C.)(Wilson J.)
Married over 20 years (?), 1 child not “of marriage” in 4 mos., wife 49 at separation
Equal division of family assets, husband doctor makes $247,000
Wife no income, and no efforts
Range $6,175-$8,233 (stated to be $7,103-$9,470, higher than existing awards)
Much discussion of “income equalization”
$5,000 ordered, indefinite, review in 3 years
Crosman v. Crosman, [2005] N.B.J. No. 272, 2005 NBQB 245 (N.B.Q.B.)(Clendening J.)
Married 25 years, 2 adult children, wife 42 at separation
Husband lieutenant colonel in Armed Forces, makes $100,000
Wife working on contract $46,764, interim support $1,850
Range $1,625-$2,208, wife requested $2,800, $1,625 ordered, for 5 years
Garland v. Garland, [2005] N.J. No. 139, 2005 NLUFC 13 (Nfld.U.F.C.)(Cook J.)
Married 27 years, 2 grown children, husband $31,500, wife $12,000
Range $608-$815. $680, indefinite, ordered.
Coolen v. Coolen, [2005] N.S.J. No. 155, 2005 NSSC 78 (N.S.S.C.)(Warner J.)
Married 25 years, review of $900 order made in 2003
Husband makes $42,400, wife $9,800 disability plus imputed employment
Both new partners, wife’s deficit $575 (sharing new home)
Range $1,018-$1,358, support reduced to $750
Romaniuk v. Romaniuk, [2005] O.J. No. 1818 (Ont.S.C.J.)(Maranger J.)
Together 9 years (married 3), wife 38 at separation, husband $72,400
Wife in school til June 2006, husband went bankrupt, left with with debt
$2,000 ordered til June 2006, then $400 til debt paid in full
Guidelines “considered”, but no details (range would have been $815-$1,086)
Kletzel v. Kletzel, [2005] S.J. No. 323, 2005 SKQB 174 (Sask.Q.B.)(Sandomirsky J.)
Married 26 years, wife 47 at separation
2002 order of $1,100, application to vary by husband
Husband’s income reduced by early retirement and new job, to $74,900
Wife’s income reduced by health problems, to $19,000
No change in spousal support, amount in range of $1,046 to $1,395
Vanderham v. Vanderham, [2005] A.J. No. 655, 2005 ABQB 351 (Alta.Q.B.)(Verville J.)
Married 30 years, 2 adult children, wife 49 at separation
Interim order by consent for $2,200 per month, then reduced to $1,100
Wife earns $33,500 as clerk
Husband’s income as heavy equipment operator fluctuates, $80,000 estimated
Guidelines “a useful tool”
Range: $1,453-$1,937. $1450 ordered, indefinite, review in 2 years
Crisall v. Crisall, [2005] A.J. No. 675, 2005 ABQB 411 (Alta.Q.B.)(Lee J.)
Married 8 years, no children
Husband union representative, earns $93,000
Wife previously earned $36-$60,000, temporarily unemployed
Order for $1,500 per month, review in 6 months
Range stated to be $795-$1,060, but doubts about “real merit” of guidelines
Correct range $930-$1,240
Denton v. Denton, [2005] N.S.J. No. 245, 2005 NSSC 155 (N.S.S.C.)(Moir J.)
Together 23 years, 19 married, wife 55 at separation
Wife hairdresser, working part-time only $8,000, imputed $30,000 full-time
Husband works overtime, income fixed at $60,000
Range $863-$1,150
Support reduced to $750, as husband larger debt load and equalization payment
A.G. v. C.G, [2006] B.C.J. No. 1157 (Prov. Ct.) (Baird Ellan Prof. Ct. J.)
26 year marriage; parties married in Peru, 2 grown children
Interim spousal support of $1000/mo
Husband earns $58,000; income imputed to be $60,000; paying $500 per month on mutual debt of $50,000 and income tax debt of $150 per month; willing to pay $600 per month spousal
Wife, with limited English language skills and poor health, on social assistance; had worked full-time as daycare worker ten years until injured in 2003; income $6120 on social assistance but court imputes income of $9,000 based on part-time work at $9/hr
SSAG range of $1594 to $2125 considered; spousal support set at $1200/mo (i.e. below range) reflecting husband’s debt payments and wife’s potential to increase earning capacity
Order gives wife 1/3 of husband’s disposable income, husband 1/3, and 1/3 for debt.
A.A.C. v. M.A.B., [2006] N.S.J. No. 169, 2006 NSSC 136 (S.C.F.D.)(B. MacDonald J.)
Married 18 years, 2 children, last marrying July 2006, child support to end then, wife 48
Spousal support paid for one year, 1998-99, $600/mo.
Wife agreed to no support in 1999, but reserved right to claim
Wife now earns $40,500, husband earns $53,500
No non-compensatory claim, so compensatory only
Range stated as $304 to $405, for 9 to 18 years, but wife claiming 9 years after separation
$300/mo. ordered for one year
Lust v. Lust, [2006] B.C.J. No. 886, 2006 BCSC 623 (B.C.S.C.)(Meiklem J.)
Married 27 years (plus some prior cohabitation), 4 adult children, wife 48 at separation
Husband earns $54,307, logging
Wife returned to work, now employed on 1-year contract, $21,575
Spousal support of $1,200/mo. ordered in 2005, now being reviewed Range $1,029 to $1,370, spousal support ordered at $1,000/mo., indefinite, no review
Dunnigan v. Park, [2006] B.C.J. No. 987, 2006 BCSC 688 (B.C.S.C.)(Maczko J.)
Married 25 years, 2 adult children, wife 52, husband 58, separated 2002
Husband earns $53,000, paying family debts
Wife earns $12,000, caring for her mother, receiving payment, husband says impute $22,000
Range: $1,200 to $1,600 ($12,000), $900 to $1,200 ($22,000)
Spousal support of $1,200 ordered, indefinite
T.M. v. R.M., [2006] B.C.J. No. 868, 2006 BCPC 161 (Tweedale Prov.Ct.J.)
Together 11 years (married 7 ½), husband adopted mother’s one child, now 20
2002 separation agreement: $650 spousal support plus child support, wife then 43
Husband remarried, he earns $95,765, new wife earns $40,000, her 2 children
Wife trained as hair stylist, hand injury, now retail sales, earns $21,027
Range $1,028-$1,370, 5.5 to 11 years
Spousal support increased to $1,000/mo., for another 4 years (total 8)
Banford v. Banford, [2006] B.C.J. No. 721, 2006 BCSC 543 (S.C.)(Powers J.)
Married 23 years, 3 adult children (2 living with wife), wife 53 (46 at separation)
Variation application, 2003 order $1,375/mo., plus $200/mo./child in university
2003: husband earning $67,500, wife student income $9,800
Husband now earns $72,500 for Ministry of Forests, remarried, U.S. wife no income
Wife got B.A., but then part-time employment, earns $28,000
Order varied to $1,200/mo. considering original order, Guidelines as “cross-check”
(Range $1,280-$1,706 indefinite)
Leger v. Schultz, [2006] O.J. No. 1313, 2006 ONCJ 103 (C.J.)(Wolder J.)
ISO enforcement case, 18-year-old German order made in 1987
17-year marriage, reference to 17 year maximum duration under Guidelines
Against public policy to enforce in Canada
Lachambre v. Lachambre, [2006] S.J. No. 165, 2006 SKQB 143 (Q.B.)(Wilson J.)
Married 32 ½ years, 1 child now 30, wife homemaker for 20 years
Wife working as part-time cashier, now cook in restaurant, earns $16,000
Husband earns $55,695 as bus driver
Range $1,219-$1,625, husband claims debt exception as paying $632/mo.
Interim spousal support of $1,400/mo., husband pays debt, wife pays mortgage
Leaves wife with monthly cash flow of $200 less than husband
Smith v. Butler, [2006] N.J. No. 96, 2006 NLUFC 13 (U.F.C.)(Cook J.)
Married 26 years, 3 adult children, 2003 order for $920 spousal support
Wife disabled, CPP Disability, $9,670/yr.
Husband accountant in NWT, earns $75,000, interim variation
Budgets analyzed, support increased to $2,300/mo., indefinite
“Comforted” that within range, $2,031 to $2,708
Vazzaz v. Vazzaz, [2006] B.C.J. No. 625, 2006 BCSC 363 (S.C.)(Myers J.)
Married 22 years, husband 44, wife 42, 2 children 22 and 18
One child home with mother, retroactive child support only
Reapportionment 60/40 to wife, so lower end of spousal support range
Husband draftsperson, earns $54,000, wife no income, but $15,000 imputed
Range low to medium $1,485-$1,733, or $1,073-$1,251 if wife earns $15,000
Order for $1,100, indefinite
M.G. c. J.C., [2006] J.Q. no. 1669, 2006 QCCS 1028 (C.S.)(Gendreau J.C.S.)
Length of marriage not stated
Husband truck driver, earns $43,293
Wife earned $12,900, but laid off and no income
Guidelines rejected, $806.58 ordered as spousal support
B.D. v. S.D., [2006] J.Q. no. 1670, 2006 QCCS 1033 (C.S.)(Gendreau J.C.S.)
2004 divorce, $1,313/mo. spousal support
Husband earned $64,826 then, but reduced to $44,000 for pension division
Husband laid off, income now $28,287, wife disabled receives $1,484/yr.
Guidelines range correctly stated by wife as $837-$1,116
Guidelines rejected, spousal support of $900/mo. ordered
D.S. c. M.S., [2006] J.Q. no. 506, 2006 QCCS 334 (C.S.)(Julien J.C.S.)
Married 22 months, cohabited 2 years, husband 77, wife 48 (45 at separation)
Interim support $3,000/mo., wife seeking $4,000/mo.
Husband got wife to quit job, paid her $3,300/mo. from his company
Wife earned $30,000 before marriage
Husband’s income not disclosed, but assets $12.7 million, ability to pay
Husband argues Advisory Guidelines, criticisms of Guidelines, rejected
Support of $3,000/mo. ordered, until Sept. 2006 (43 months paid)
(Husband’s income above ceiling, but if $600,000, range would be $3,000-$4,000)
H.D. c. J.-Y.L., [2005] J.Q. no. 18347 (C.S.)(Jacques J.C.S.)
Married 31 years, 2 children 26 and 24, younger (some disability) with father
Husband earns $78,000, wife earns $5,000 part-time, traditional marriage
Interim interim support $1,000/mo.
Interim spousal support of $1,700/mo., rejects Guidelines amounts
Wife sought $2,800, states range as $2,900-$3,900
[But range appears to be $2,281-$3,041, without adjustment for son in father’s care]
3. The With Child Support Formula
Leading Decisions
W. v. W., [2005] B.C.J. No. 1481, 2005 BCSC 1010 (B.C.S.C.)(Martinson J.)
Together 24 years (22 married), both in 40’s, professionals, 2 children with mother
Husband makes $125,000, wife makes $56,728
Child support $1,470
Range $745-$1,585, spousal support of $1,500 ordered, indefinite
Extensive discussion of Guidelines, “consistent with the law in British Columbia”
Fewer v. Fewer, [2005] N.J. No. 303, 2005 NLTD 163 (N.L.S.C.)(Handrigan J.)
Married 16 ½ years, wife 44 at separation, husband 38, 1 child (15) with wife
Husband carpenter earns $35,893, wife works part-time at Walmart, earns $14,031
Child support $291
Guidelines range calculated by ChildView, zero to $224
$180 ordered, considering length of marriage, wife home for marriage, income difference
Duration fixed at 16 ½ years from separation, subject to variation
Kerr v. Kerr, [2005] O.J. No. 1966 (Ont.S.C.J.)(Blishen J.)
Married 16 years, 5 children with mother, husband $95,014, wife no income
Child support $2,085, plus some s. 7 expenses
Formula range stated as $794-$1,189, temporary spousal support of $1,000 ordered.
Puddifant v. Puddifant, [2005] N.S.J. No. 558, 2005 NSSC 340 (S.C.F.D.)(Gass J.)
Married 12 years, 1 child 16 with husband, wife 42 (33 separation), husband 46
Wife mental illness, CPP disability and investments, $14,918, no child support
Husband in Armed Forces, retired 2004, new partner nurse
Husband receives $37,823, but $4,667 his share of divided pension, so $33,156
|