Court Finds Unfair Spousal Support Agreement To Continue
The importance of properly drafting, and reviewing, mediated separation agreements was highlighted in a Supreme Court divorce case this week. Justice E.A. Arnold-Baily upheld a husband’s obligation to pay spousal support, despite the fact that his ex-wife won a $124,000 personal injury award, was employed, did not report her income, and did not contribute any child support for their children while he had full custody of them.
The case came before B.C. Supreme Court in Vancouver. The claimant (wife) A.E.W. sought retro-active and on-going support from the respondent (husband) B.E.W., in April 2014. The couple had been married 19 years, and had two sons together. They separated in 2002, and after a JCC (Judicial Case Conference), agreed to mediation.
The couple hired a Mediator, and a mediated separation agreement was filed on January 16, 2003. That agreement specified that the husband would pay the wife spousal support of $1050 per month, unless she married, cohabited with a partner for more than 3 months or obtained a full-time teaching position. It was also understood that her employment income would factor into the spousal support owed-reducing her husband’s support obligation.
The wife obtained employment during periods following the separation, but it was not a full-time teaching position, and she did not report it to her husband for support adjustments. She also received several financial settlements following Human Rights Tribunals and a $124,000 settlement following a personal injury tort action. The husband stopped paying spousal support in approximately 2006.
The mediation agreement did not consider that the wife might obtain different kinds of jobs (other than teaching full-time), or that she might obtain income from other sources. It also did not account for change in health status of either party.
According to Victoria Accredited Family Law Mediator, Michael Butterfield “mediated agreements are difficult to change. However, a simple review clause in an agreement can protect both parties from unfairness”.
At the time of this judgement, both parties had significant health problems. The wife had long-standing Bipolar Disorder, in addition to head injury. The husband had kidney failure and maintained his full-time employment despite having daily dialysis.
The couple’s mediated agreement also did not specify child support obligations. It noted only that the couple would share custody of the children equally, and that the husband had agreed to pay for extra-ordinary expenses. The couples’ two sons resided with each parent on an equal basis, until the wife moved to New Westminster in 2004.
Just 2 years after their separation, the wife paid no child support to her children’s father. The only financial support she provided to the boys was a one time gift of $500, after she received an inheritance. The couples’ two sons, now adults, have benefitted from post-secondary education and are now employed.
The Honourable Madam Justice E.A. Arnold-Baily granted the couple’s divorce, dismissed the wife’s application for retroactive spousal support (2006-2014), and ordered that the husband pay on-going spousal support, subject to her reporting her monthly income so that the appropriate reductions could be made.
The judge also seized herself of the matter and informed both parties that they could bring an application to set aside the original mediation agreement, or apply to review the spousal support obligation.
“The judge has left the door open for either party to apply to change the agreement to address any unfairness” noted Mr. Butterfield Butterfield.
Jayne Embree, M.A.
Jayne holds a Masters in Psychology and is a highly experienced Divorce Coach and Child Specialist. Currently on sabbatical, Jayne is conducting research in the area of family dynamics and parental conflict.
Areas of Practice: Family law including separation, divorce, mediation, arbitration, child & spousal support, support variations, guardianship, parenting time, access, property division and more. Victoria BC