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SPOUSAL SUPPORT - Variation or termination of obligation - Changed circumstances - Practice and procedure - General principles - Legislation

Thursday, January 04, 2018 @ 8:33 AM  


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Appeal by husband from a Supreme Court order regarding spousal support. The parties separated in 2002 after a 22-year union. The parties were teachers and had two adult children. In 2007, the parties entered into a consent divorce order. Pursuant to the order, the husband was required to pay the wife indefinite spousal support and each party received a half interest in benefits payable under the other party’s pension plan. The wife did not take her entitlement to the husband’s pension in a lump sum, but the husband elected to take the commuted value of his interest in the wife’s pension. In 2013, the Family Law Act came into force and it became possible for the wife to begin collecting monthly pension payments from the husband’s plan, even though the husband had not yet retired. This option was previously not possible under the Family Relations Act. The husband argued that this legislative change constituted a material change in circumstances that warranted either the reduction or termination of the spousal support he paid the wife under the consent order. The Supreme Court rejected the husband’s argument on the basis that attributing to the wife a previously divided asset’s income stream would constitute double-dipping, which was not permitted. The husband appealed.

HELD: Appeal dismissed. The Supreme Court did not err in law in deciding that the income attribution would constitute double-dipping. This general rule was applicable in the circumstances of this case. A variation of the consent order was not justified. Receipt of pension income from an equally divided pension was not to be taken into account when determining spousal support. Therefore, the husband failed to identify a material change in circumstances warranting reconsideration of the spousal support order. There was no unfairness in excluding, for spousal support purposes, the income the wife was realizing from her one-half share of the husband’s pension in circumstances where the husband was, likewise, under no obligation to share with the wife the fruits of the commuted value of his one-half share in the wife’s pension.

Malbon v. Malbon, [2017] B.C.J. No. 2475, British Columbia Court of Appeal, D.F. Tysoe, G.J. Fitch and J.J.L. Hunter JJ.A., December 7, 2017. Digest No. TLD-January12018007