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My ex-husband has remarried and because his new wife is

Customer Question
Please!! My ex-husband has...

Please!! My ex-husband has remarried and because his new wife is earning $550,000 per year he decided to quit his job and has now filed an application in BC Supreme court to stop my support payments.

Lawyer's Assistant: Since laws vary from place to place, what state is this in?

Can he do this? I am in British Columbia, Canada.

Lawyer's Assistant: Have you talked to a lawyer yet?

No. I just found out today.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I have no other source of income other than the support he is paying me. He has quit his job once before in order to not pay support but was ordered to pay anyhow. I just want to know if the court sees the income his new wife earns as family income?

Submitted: 6 months ago.Category: Canada Family Law
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Answered in 8 hours by:
12/2/2017
Family Lawyer: ulysses101, Lawyer replied 6 months ago
ulysses101
ulysses101, Lawyer
Category: Canada Family Law
Satisfied Customers: 3,734
Experience: Over 10 years litigation experience in family, criminal, and civil law
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Hello, thank you for the question.

Can you tell me more about his support obligation?

Is it time limited? Does it terminate under certain conditions?

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Customer reply replied 6 months ago
It's support for life. We were married for 30 years.
Family Lawyer: ulysses101, Lawyer replied 6 months ago

Then I think you have an excellent chance of success here. Perhaps he's trying to scare you into renegotiating. He needs to show not only that his personal income is down (and thus his ability to pay support) but that he's incapable of earning that income.

The court imputes income to support payors all the time. You said it happened already once before with him, right?

Is there anything else you want to discuss about this? Any other factors which are new to the equation?

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Customer reply replied 6 months ago
I am thinking of asking the court for a pay out so I don't have to keep worrying about his next move. I live in constant fear and uncertainty of what he'll do next. This is actually the 7th time since our divorce in 2014 that he has attempted to change the agreement. Would I be successful in asking for a lump sum pay out? I am also thinking of asking for a variation to the agreement in some way, not sure how to word it, that the court should look at a re-apportionment. He has 1.75 in RRSP's, a house fully paid for in Toronto, Ontario and lives the life of luxury. I am struggling to make ends meet.
Family Lawyer: ulysses101, Lawyer replied 6 months ago

You're certainly free to ask for more spousal support, but like him you'd have to prove why the court should open it back up. And if the court will open up the issue then it could go either way from there.

You can certainly try to negotiate a lump sum. It's more of a tax question. Periodic, ongoing monthly support is tax deductible to him and tax inclusive to you. If your income is low then your tax bite is minimal. And that write off to the payor has value, depending on their taxable income.

A lump sum is tax neutral. It's neither deductible nor inclusive as income. So any negotiations on this issue have to look at this tax treatment by both parties.

Does that make sense?

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Customer reply replied 6 months ago
what you have explained is clear. The last outstanding question which I asked I still need answered is whether or not in Canada, "household" income applies to support. I know the government deems total "household" income when it comes to calculating child support, I just want to make sure that it also applies to spousal support. As I mentioned at the beginning of this question session, my ex-husband has quit his job because his new wife earns $600,000.00 per year. So I need to know if the $600,000.00 she earns is considered "household" income. Would you be able to find this out for me or should I consult a Canadian family lawyer?
Family Lawyer: ulysses101, Lawyer replied 6 months ago

I am a Canadian family lawyer.

His ability to pay is a factor on the quantum of child support issue. So it's his ability to pay, not his household's ability to pay.

It doesn't really matter what his partner earns. If he's quit work because he's living off of his partner's income, the court can still order him to pay based on what he should be earning or is capable of earning. The court will have some sympathy for you when looking at the disparity of incomes and lifestyles here and that will help you, but it's not correct to say that his support obligation takes into account his household rather than his income (actual or imputed).

Is that logical?

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Customer reply replied 6 months ago
I was reading a number of cases such as Kelly v Kelly, 2011 BCCA 173 (CanLII), B.D.C. v. L.L. 2006 BCPC 479 (CanLII) and I thought that "household" income was a factor in these cases. Is it not?
Customer reply replied 6 months ago
Also, case Van Gool v. Van Gool, 1998 (Can LII) 5650 (BC CA).
Family Lawyer: ulysses101, Lawyer replied 6 months ago

Kelly is about the interplay between child support and spousal support, and VanGool is child support, to my skim of those cases. Am I wrong?

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Customer reply replied 6 months ago
that is correct. So let’s focus on Kelly. What do you think in respect to my case? Could I use it as case law or is there any other case you would suggest that I read?
Family Lawyer: ulysses101, Lawyer replied 6 months ago

Case law is hard to read for non-lawyers. I'm not trying to be exclusionary, but it's written by judges for judges and for laywers too. It's not meant to be easily understood by the public. Also, judges are people too and often get things wrong or make mistakes.

Find a lawyer near you who can give you a Legal Aid memo on spousal support issues in BC, or go to the local bookstore or library for some lay reading on the subject. Maybe a look at an annotated family law statute book on BC Family Law would give you a better starting point. Find the cases that apply to your situation best, ***** ***** look for cases where you like the result and then try to shoehorn it to apply to your facts.

Unless you have child support issues in your case, then Kelly is utterly distinguishable (which means it can be argued that it ought not apply because of different issues). In it, the appeal had more to do with the child support issue, and if the child support issue was decided wrong then that affects the spousal support between the same couple.

Does that make sense?

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Family Lawyer: ulysses101, Lawyer replied 6 months ago

Is there anything else to discuss about your support issue?

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