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MAINTENANCE AND SUPPORT - Variation or termination of obligation

Tuesday, April 09, 2019 @ 10:00 AM  

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Appeal by the wife and cross-appeal by the husband from a judgment varying a spousal support order. The parties separated in 2003 after 17 years of marriage. A 2004 separation agreement was incorporated into a 2005 divorce order. Among other things, the divorce order provided for spousal support of $1,400 per month based on the husband’s annual income of $185,000. Although the agreement provided for review of support after three years, no such review was sought until 2016. The husband applied to terminate support. The wife sought review or variation of support on a retroactive basis. The application judge ordered spousal support to continue at the same amount until October 2021, at which point it would terminate. The wife appealed on the basis the judge erred in refusing to increase support and failed to conduct a full and appropriate review of the parties’ respective needs, means and circumstances. The husband cross-appealed on the basis the judge erred in calculating the appropriate duration of support.

HELD: Appeal allowed; cross-appeal allowed. The application judge erred in law by conducting a review without engaging in a reconsideration of the quantum of spousal support in light of the guidance offered by the Spousal Support Advisory Guidelines. Further, the judge misapprehended the evidence when he stated that there was an unequal division of property in the separation agreement, as the unequal division of proceeds from sale of the family home in favour of the wife reflected the husband’s retention of certain corporate shareholdings. Finally, the judge erroneously determined that the husband’s income had not increased for the purposes of calculating the amount of spousal support, because he incorrectly determined that the husband’s corporate income could not be included in the assessment, and that the husband’s change in work responsibilities that led to the increase were unrelated to any contributions that the wife made during the parties’ traditional marriage. The application judge’s decision was set aside. The court was unable to conduct its own review on the record before it.

Helle v. Helle, [2019] B.C.J. No. 412, British Columbia Court of Appeal, P.M. Willcock, G. Dickson and G.J. Fitch JJ.A., March 19, 2019. Digest No. TLD-April82019004