Appearing in the January 2015 edition of "The Advocate" is the article by Susan Boyd and Catherine Whitehead, "Spousal Support Under British Columbia's new Family Law Act: A Preliminary Analysis".
The authors state that there have been at least 30 decisions dealing with the issue of Spousal Support under the Family Law Act. There have not been any appellate decisions at this time. The authors review 11 of these decisions. The authors chose these decisions because, in their view, the cases are representative of the caselaw to date, and because the cases grapple extensively with the the Spousal Support provisions in the new legislation.
The authors come, to the following conclusions:
- The Family Law Act was intended to mirror the Divorce Act provisions in relation to spousal support more closely than the previous legislation.
- The judgements rely heavily on the "objectives" of Spousal Support as stated in section 161 of the Family Law Act. The judgements tend to carefully scrutinize the importance of promoting self-sufficiency.
- Although the Family Law Act was intended to "provide clarity" in this area of law, the decisions are still unpredictable.
- The authors divided the cases into two categories:
- the "Narrow" readings of the Spousal Support Rules: In general, the court in these cases tended to be more reluctant in awarding Spousal Support by holding the proposed recipient of the award to a stricter requirement to become economically self-sufficient. On occasion, the court imputed a higher income to the proposed recipient than the recipient was had currently received at the time of trial.
- the more "Contextualized" analysis: In general, the court in these cases tended to recognize the difficult “reality” that the lower-earning spouse would have to become self-sufficient, especially if this spouse was also responsible for being the principal caregiver of the child(ren). The result was that the court tended to be more lenient on requiring the proposed recipient to become economically sufficient.
- At this point in time, the caselaw suggests that it is more uncommon for the court to follow the "Narrow" approach.
- If there is no evidence of “financial integration”, then the court will likely be reluctant to make a Spousal Support order. For example, the court in Rathlou v. Haylock, 2014 BCPC 59, the court did not award spousal support because the court found that "the praetorship was emotional, not economic". However, the authors comment that it might have been of significance that the parties were unmarried.
- Another factor that the authors point to that can lead to curious results is that of whether there is an expectation of financial support. To illustrate, the authors point to the case of Cabezas v. Maxim, 2014 BCSC 767, in which the court did not award spousal support because the proposed payor did not have history of working. The court reasoned that in doing so, the proposed payor "created no expectation on the part of the claimant that she would be supported by him".
- The authors comment in closing that the judgments are the most varied in relation to relationships which do not fit the typical mould: that being that the claimant is female, and the claimant had been the party to sacrifice employment in order to manage the household.
The full article can be found in volume 73, part 1 of the January 2015 edition of "The Advocate".