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MAINTENANCE AND SUPPORT - Spousal support - Agreement - Variation or termination of obligation

Monday, May 17, 2021 @ 9:20 AM  


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Appeal by the wife and cross-appeal by the husband from a spousal support ruling. The parties married in 1992, separated in 2014 and divorced in 2016. They had a child born in 1999. A 2015 separation agreement was achieved through mediation with the assistance of legal counsel. The agreement stated that the wife’s income for support purposes was $49,517 and that the husband’s income was $134,480, subject to change based upon receipt of stock options. The husband’s monthly spousal support obligation of $1,900 was based on the mid-point of the “with child support” provisions of the Guidelines. In 2018, the wife sought a retroactive variation of spousal support since their child was no longer a child of the marriage. Court-ordered disclosure indicated the husband’s income was $142,000 in 2016, $154,000 in 2017 and $263,000 in 2018. The judge found a material change in circumstance arose from the increase in the husband’s income, and that such change arising from payment of stock options was contemplated by the parties’ agreement. The husband’s monthly obligation increased to $7,479 per month. The wife appealed the judge’s denial of a retroactive increase. The husband cross-appealed the aspect of the judgment increasing his monthly obligation. 

HELD: Appeal dismissed, and cross-appeal allowed. Although the wife’s application had attributes of a review of spousal support, the separation agreement did not have a review provision. The order sought by the wife was not inconsistent with the agreement and therefore did not engage a full Miglin analysis. A full review of the agreement did not support the judge’s conclusion that the receipt of stock options by the husband constituted a material change that triggered an increase in spousal support. The receipt of stock options was within the contemplation of the parties when they made their agreement. However, such reference did not provide for an increase in spousal support based on the husband’s receipt of stock options. The judge erred in finding that the reference to the options for support purposes was equally applicable to spousal support in the context of the entire structure of the agreement. In addition, the judge did not consider whether the increase in the husband’s income was enduring or had a measure of continuity. The order below was set aside.

Hall v. Hall, [2021] B.C.J. No. 527, British Columbia Court of Appeal, M.V. Newbury, M.E. Saunders and J. DeWitt-Van Oosten JJ.A., March 17, 2021. Digest No. TLD-May172021001