“I have to pay what?” and “When does it end?” are the usual questions that we as lawyers get asked when someone learns that they will most likely have to pay spousal support.
Family Law: Why do I have to Pay Spousal Support?
Spousal support can be payable for a number of reasons, sometimes to fill a shortage of cash following a separation, and sometimes to compensate a spouse for opportunities lost during the course of a relationship. There can also be contracts between parties that give rise to spousal support.
Regardless of the basis for support, however, the question of when support ends is a big and important one for both payers of spousal support and recipients. When agreements or court orders are not clear, this can lead to significant legal fees and conflict for the parties years after they separate, not to mention the financial uncertainty that results.
When Do I Have to Stop Paying?
This is a complicated question that depends on the facts. While the test to vary or terminate spousal support is relatively simple (there needs to be a “material change in circumstances”) there are no easy answers. Just because the recipient of support enters into a new relationship does not necessarily mean that support should stop. If there is a significant compensatory claim, then the support may continue. In short “it depends”, the phrase lawyers love so much and clients hate to hear.
People often make decisions about when support ends, or when they think it should end, without the right advice. The results can be significant, such as continuing to pay support for years after it could have been terminated or agreeing to terminate support prematurely.
Sometimes, parties pay lawyers to argue their case to terminate support and despite the cost and stress of doing so, are unsuccessful, resulting in them paying legal fees in addition to the ongoing support which is surely a tough pill to swallow. Take for example of the case of Malbon v. Malbon, a 2018 case from the BC Court of Appeal.
Family Law Issues: Malbon v. Malbon Example Case
In Malbon, the parties settled their issues on separation by entering into a consent order that divided the husband’s pension and granted the wife spousal support. The wife was not able to receive any money from the husband’s pension however, not until the family law legislation in BC changed in 2013, when she was finally able to start receiving the benefits.
The husband saw this as a “material change in circumstances”. He applied to terminate or reduce his spousal support. He applied in the Supreme Court of BC for that order, presumably at great expense, and he was denied. He then appealed that order, again presumably at great expense and his appeal was denied.
The husband argued that the wife receiving spousal support after his pension was in pay to her would be a form of “double dipping” or “double recovery”. The law on double dipping is already relatively clear in BC. If the asset was divided then you can’t normally expect to receive spousal support on it. However the husband was still earning his employment income, out of which he was paying support and just like you cannot expect to receive spousal support from the income from a divided asset, you can’t expect the receipt of that income to provide a basis to terminate support.
So in this case, as much as Mr. Malbon would have liked for his $1,000 per month spousal support to stop, he had to take his case through two levels of court to find out that he would not be able to, for now, with costs payable to his wife as a result and him continuing to pay that support.
This highlights a few points. First, where possible, clarifying in agreements or court order are either to terminate or when and under what circumstances they are reviewable can save you time and expense. But sometimes that’s not possible and in that case, retaining a lawyer that is up on the law and gives you the right advice from the outset can avoid a premature application to terminate support and tell when the time is ripe to do just that.
The end of spousal support carries big stakes for both the payors and recipients of it and given that it really “depends” as to when it should end, this is a subject that people are best speaking to an experienced family law lawyer about.
Are you currently paying or receiving spousal support and have questions about when this agreement may cease?
Michael Sinclair is a family law lawyer and estate lawyer at Doak Shirreff Lawyers LLP. Click here to connect with Michael. He can also be reached at [email protected]