Thursday, September 10, 2009

Fisher v Fisher Revisited

Fisher Revisited

This case is a 19 year marriage with no children.

They married in August 1985 and separated in April 2004.

The trial judge ordered 3 years of support with provision for a 3 year review without the need for a material change of circumstances.

Appeal court orders time limited support for 7 years.

The parties were married 1n 1985 when 21 and 23 each and separated April 2004 when they were 41 and 42.

The wife (appellant) worked for the early years of the marriage putting the husband (respondent) through school and moved from Waterloo to London so he could complete his professional education.

Appellant had high school education and the through marriage took courses towards BFA.

Appellant (paragraph 12) worked part time through the marriage. Until 1999 her work was seasonal with prolonged absences from work. From 1984-1999 she worked full time only half the time. She worked full time in the last years of the marriage. Her income averaged $30,000.00. She took a year off for depression October 2004 to September 2005.

At separation his income was around $140,000.00 with car allowance and benefits.

Respondent paid wife $102,000.00 for equalization.

Wife’s income prospects uncertain.

:”…[33] It is helpful to begin by setting out the factors and objectives of ss. 15.2 (4) and (6) of the Divorce Act regarding an order of spousal support.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[34] I will deal with each of the relevant factors and objectives in turn, mindful, as was the trial judge, of the admonition that no one objective predominates; rather, it is important to balance all four objectives in the context of the circumstances of the particular case….
“…[36] Even though this marriage was lengthy, the trial judge decided that an indefinite order was not appropriate. In making this determination, the trial judge considered the appellant’s employment position and relative youth. For reasons that I will expand on later, I see no reason to interfere with the trial judge’s determination on this point.
Both parties did household chores—par. 37. But wife doesn’t argue the marriage affected her career prospects.

Husband’s obligation to his second family can’t reduce his support obligations to his wife—par. 41.

Moge is the basis of compensation theory. Here there was financial interdependence and economic advantage to the husband. There was no evidence of any of wife being denied by the marriage of any career opportunity. But she did suffer disadvantage from the break down with a lesser standard of living and her year of depression and after advantaging the husband to some extent—paragraphs 43—51.

Self sufficiency is a relative concept. It relates to the part past circumstances, the economic partnership they enjoyed taking into account all relevant factors. It’s more attainable in short term marriages: in long term marriages not so much.

Paragraph 56:

“…Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra, at pp. 174-75). (p. 870)…(J. Dube in Moge.)

No argument that wife will be self sufficient on $30,000.00 per year. But is it reasonable to expect wife to gradually adjust her standard living to one commensurate with the rown income—par. 59.

“…Summary of objectives
[60] In summary, the appellant suffered no established economic disadvantage arising from the marriage either by the assumption of child care responsibilities or in any other way that compromised her career or educational aspirations. Any minimal disadvantage cannot be compared to that of a long-term traditional spouse who made career sacrifices to the significant advantage of the other spouse. While the appellant’s economic assistance at the beginning of the parties’ marriage provided an advantage to the respondent, the primary basis for the appellant’s support claim is framed as an inability to attain self-sufficiency in light of the marital standard of living….”

“…[84] The factors and objectives require a balancing of the parties’ circumstances, including the duration of the parties’ cohabitation, their ages, their incomes and prospective incomes, the effects of equalization, the stages of their careers, contributions to the marital standard of living, participation in household responsibilities, the absence of child-care obligations, the respondent’s increased cost of living arising from his new employment, the parties’ reasonable expectations, the respondent’s rapid pre- and post-separation increases in income, the appellant’s limited claim for compensatory support and her greater need for transitional support…”
“…[85] In reaching his decision to limit the duration of support, the trial judge referred to several authorities and specifically referenced the appellant’s “relative youth, her good health, the fact that she has no dependents and has no (significant) debt, and her past and present work record/ethics/opportunities”. As I have said, I agree with the trial judge that indefinite support was not indicated on the facts of this case….”

“ …[88] To provide the appellant with a reasonable transition following her nineteen-year marriage, it is my view that the appellant will need support for seven years, beginning with the year of separation. In my view, a seven-year order complies with the spousal support objective of recognizing the appellant’s economic disadvantage arising from the marriage and its breakdown, while also encouraging the appellant to complete her transition to self-sufficiency, whether by reason of earning a higher income or, more likely, by adapting her lifestyle to her then income….”
[110] In this case of a medium-term nineteen-year marriage, the Guidelines provide a range of support. At the low end of the range, the appellant would receive 28.5% of the parties’ income differential of $54,325, or $1,290 monthly ($15,483 annually). At the high end of the Guidelines’ range, the appellant would receive 38% of the differential, or $1,720 monthly ($20,644 annually). In accordance with the formula for duration, support would be payable for a period ranging from 9.5 to nineteen years.
[111] The award I consider appropriate in this case, at least initially, both exceeds this range for amount and falls below the range for duration. Thus, I turn to the provisions for restructuring, which essentially involve converting the specific ranges of support to a lump sum amount (without consideration for present values). In this case, this conversion results in a broad support range from a low of $147,088, to a high of $392,236.
[112] This global range can be compared to the trial award as a “litmus test of reasonableness”. The trial award, including interim support, but assuming termination in December 2008, totals a lump sum of $94,200[31], an amount that falls far below the Guidelines, although I recognize that this does not account for what may have been the final result after a review hearing.
[113] In comparison, the support award that I propose in these reasons would total $189,000[32]. This figure falls within the Guidelines global range, albeit toward the low end of that range…”.

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