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MAINTENANCE AND SUPPORT - Spousal support - Calculation or attribution of income

Tuesday, December 10, 2019 @ 8:03 AM  

Lexis Advance® Quicklaw®
Appeal by the husband from an order of a Chambers judge reviewing a 2016 trial decision awarding the wife spousal support of $8,000 until further order. The chambers judge determined support at $8,000 per month was payable until October 2019 and directed a review in June of 2019. The parties separated after a 29-year marriage. The wife worked part-time to permit her to care for the parties’ three children. She retired early, thus reducing her annual salary from $80,700 to a pension of $51,000. The chambers judge imputed income of $80,700 to the wife on consent. The husband ceased working as a commercial real estate broker upon the completion of his 2016 affairs. The Chambers judge justified the continuation of support on the basis that the husband’s average income from 2014 to 2016 would sustain a continued award and his income from 2011 to 2016 was significant and considerably greater than what the trial judge had anticipated. The Chambers judge ordered present support based on the husband’s means to pay from investment income derived from capital assets acquired post-trial. The husband’s capital assets accumulated after trial were significant. The husband argued the wife was no longer entitled to receive support having received an equal division of property and significant spousal support since 2009, such that any claim to compensatory support was exhausted.

HELD: Appeal allowed in part. The order compelling a review was set aside. The Chambers judge did not err by ordering support from January 2016 until October 2019, although she miscalculated the husband’s 2015 income. It was also unclear how she arrived at the amount the husband earned between 2011–2015. Since the husband’s income from 2015 to 2019 was considerably less than what would be necessary to pay an award of $8,000, spousal support must come from his capital invested in Leaward Shelter, a holding company used to store his capital assets derived from the income received from 2011–2015. During the time, the husband had substantial capital assets in the holding company that could be used to pay a spousal support order. The decision of the Chambers judge to consider this source did not contravene the principle against double dipping. The chambers judge focused on that part of the husband’s income and assets that had not been divided at trial in circumstances where the trial judge had already determined that there was a continuing need for support. While the Chambers judge erred by settling upon $3,667,319 as the income figure from 2011 to 2015, she did not err in determining that the husband had significantly increased his cash assets from that anticipated by the trial judge by more than $1 million. The Chambers judge did not err by ordering spousal support from capital acquired after trial given her findings about its origin in the parties’ marriage. In the context of a 29-year marriage with children, an award of indefinite support was not clearly wrong. Where the parties had such disparate earning capacities, an award of support for eight and one-half years after trial was not clearly wrong, even having regard for the fact that spousal support was paid for some part of the period from 2007 until trial. The accounting errors made in relation to the 2011 to 2015 income did not count as a significant or serious misapprehension of evidence that would justify intervention by this Court. The only evidence supportive of the wife’s concerns regarding the husband’s future income was her assertion that she did not believe he retired and statements he might dabble in retirement. This did not justify a finding of genuine material uncertainty warranting a review order. There was no genuine material uncertainty at the point when the Chambers judge made her order. No review order ought to have been made.

P.M. v. S.M., [2019] S.J. No. 427, Saskatchewan Court of Appeal, G.R. Jackson, R.K. Ottenbreit and L.M. Schwann JJ.A., October 31, 2019. Digest No. TLD-December92019004