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The British Columbia Court of Appeal found that the trial judge erred in ordering the lower-income spouse to pay lump sum spousal support, without considering the Spousal Support Advisory Guidelines or providing discernable reasons for the order

British Columbia

,

Canada

Trial Judge Erred in Awarding Spousal Support to Higher-Earning Spouse Absent Special Circumstances In Sebok v. Babits, 2022 BCCA 2 (CanLII), the parties were married for 28 years and had four children. During the marriage, the husband was a real estate agent and “dabbled in questionable income-generating activities,” including gambling. He was the primary income earner. The wife was responsible for the home and raising the children. She earned a limited amount of income outside the home as a travel agent. The husband was 68 years old, and the wife was 61.At trial, the husband and wife advanced competing claims for spousal support. The trial judge found that the husband’s claim was without merit and specifically rejected his evidence that he was disabled. The wife sought to impute income of $180,000 per year to the husband. The trial judge imputed income to the husband of $50,000 per year, which amount was lower than the wife’s income for the most recent post-separation years.The trial judge found that the wife established entitlement to compensatory spousal support and ordered that spousal support should be paid in a lump sum through an adjustment of the property division as the husband’s conduct to date indicated that monthly support would not be paid.On appeal, the husband claimed that the trial judge erred in awarding spousal support without considering the Spousal Support Advisory Guidelines (SSAG) and by making an award of spousal support to the higher-earning spouse.Marchand J.A., for the Court of Appeal, found that the trial judge was correct in finding that the wife established entitlement to compensatory spousal support. The Court then cited previous decisions in which it had held that reference to the SSAG was required as part of the process of determining the quantum of a spousal support award. In this case, the trial judge neither referred to the SSAG nor provided any reason for deviating from them.The Court found that the wife’s claim for spousal support was founded on her submission that an income of $180,000 per year should be imputed to the husband. The trial judge rejected this submission and further failed to find any exceptional circumstances that may have justified a spousal support award to the higher-earning spouse. The Court of Appeal set aside the award.

April 14, 2022
Sebok v. Babits, 2022 BCCA 2 (CanLII)