Richard, 56, and Alice, 49, (names changed) were married for 20 years. They had no children. Neither made sacrifices during the marriage, and both were self-sufficient and able to make a clean break when they separated. But Alice was earning significantly more than Richard.

Should he get spousal support under the federal Divorce Act just because of their “income disparity”?

BC’s appeal court decided this case recently.

Richard argued that if roles were reversed and a husband made a lot more than his wife after they broke up, she’d almost routinely get some spousal support.

Here, Alice had made a career for herself, getting bachelor’s and master’s degrees and a teaching certificate without Richard’s help. She became a high school principal, worked full-time, and earned roughly $120,000 when the marriage broke up.

Richard was working for CN full-time when they met. He continued with CN after they got married, earning up to $48,000 a year. Then he was injured in a car accident in 2001, so he later began work as a part-time personal trainer.

He said he earned less than $10,000 per year when he left Alice in 2011, but wasn’t able to prove what his earnings really were. He was paid mostly in cash and didn’t keep a record of his earnings or file tax returns. Alice found out after the separation that he also had earnings from questionable activities, selling steroids and growth hormones, but Richard told the court he no longer did that.

Economists told the court full-time personal trainers without university degrees averaged between $51,000 and $68,000 a year. The court concluded Richard had chosen to work only part-time and not to become certified or explore other better-paying occupations – so he was under-employed by choice. The court said his annual income should be treated as though it was between $50,000 and $60,000.

The appeal court noted earlier cases where some spousal support was paid to the “disadvantaged” spouse after a long marriage, when there was substantial income inequality post-breakup.

But it emphasized that marriage alone, even if long, doesn’t automatically entitle a spouse with lower income to spousal support. If you’re both self-sufficient and a clean start is possible after separation, the lower-income spouse can’t automatically lay claim to the fruits of their ex’s future labour. They must prove why they should get support – whether due to foregone opportunities, need, lack of means or other relevant factors. Here, Richard couldn’t.

Another factor in this case was that, after separating from Alice, Richard started living with another woman who made a base salary of $75,000 to $90,000 plus overtime (close to what Alice earned), and they lived in a condo similar to the one Alice bought post-separation.

So the appeal court agreed Richard wasn’t entitled to spousal support. (But it allowed him to keep the $17,500 Alice had paid him earlier in interim support – equivalent to transitional support payments.)

Before, courts were inclined to automatically award support when there was a big difference in income between the spouses after they split. By stressing you must first prove you’re entitled to support, this decision may have put the brakes on this trend.


Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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