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MAINTENANCE AND SUPPORT - Spousal support - Lump sum award

Wednesday, December 09, 2020 @ 6:19 AM  

Lexis Advance® Quicklaw®
Appeal by the husband from an order to pay the wife lump-sum spousal support. The parties married in 1992 and separated in 2016. They had no children together. The wife, now age 69, previously taught ceramics and curated a municipal art gallery. She used the proceeds of the sale of her home in 1985 to purchase property that the parties held jointly. The husband, now age 62, worked as an insurance adjuster. He was self-employed with interests in several private companies. The parties ran a llama farm from an acreage they regarded as the family home. The wife did most of the work associated with the farm. The husband travelled for work frequently and was based primarily out of his Alberta property from 2012 onward. He paid the wife $5,000 per month before and after separation to cover her needs and the farm’s expenses. The husband claimed he was unable to work due to a disability related to mould at his Alberta property. The parties were self-represented at the 2019 trial. The trial judge noted the husband failed to provide complete disclosure of his companies’ finances and personal assets. In considering the implications of an equal division of family property and debt, the trial judge ordered an unequal division in the wife’s favour to reflect her use of excluded assets to maintain the family home and farm to the detriment of her own career. The husband failed to prove he was disabled and unable to work. The trial judge inferred an annual income of $110,200 and ordered lump-sum support of $381,394, reflecting that the husband was nearing the end of his ability to earn. The husband appealed. 

HELD: Appeal dismissed. Fresh evidence related to the husband’s disability claim was available before trial or lacked sufficient significance and was thus refused. The trial judge did not make a palpable and overriding error in concluding the husband failed to establish a disability that prevented him from earning an income, especially in the context of significant concerns that the husband had other sources of funds, which may have included professional income which had not been disclosed. The trial judge did not err in valuing the husband’s corporate interests and concomitantly finding he had the ability to make a lump-sum payment over a period of 10 months. The judge clearly considered the relevant factors, including the history and risk of non-payment, and exercised her discretion properly in determining both that a lump sum award was appropriate and the amount that should be awarded.

Falkener v. Falkener, [2020] B.C.J. No. 1740, British Columbia Court of Appeal, P.M. Willcock, P. Abrioux and J. DeWitt-Van Oosten JJ.A., November 5, 2020. Digest No. TLD-December72020005