Important Case Law — High Income Spousal & Child Support
Beninger v. Beninger 2009 BCCA 458
In 2002 the parties divorced after a 27 year traditional marriage. The Husband, who was a tax lawyer in Calgary, had his income determined to be $330,650, and spousal support set at $9000 per month and child support based on the guidelines. The Order stated that should the husband’s income changes or if the husband provided better or further financial information, the order could be reviewed for the spousal amount.
The Wife, upon learning that the husband had received a performance bonus in 2008, made an application to review support. In the Court of Queen’s Bench, the husband was ordered to pay child support based on the guidelines of an income of $416,400 and spousal support of $10,000 per month. The wife appealed on the fact that she believed the Husband’s income to be $475,000 and that she wanted both parties’ net disposable incomes equalized.
The Court of appeal was not prepared to overturn the decision of the lower court based on the Hickey v. Hickey decision, that a higher court cannot interfere with a lower court’s finding just because they would had made a different decision, and on Housen v. Nikolaisen, which states that they can only interfere with a finding of fact if the finding is unsupported by evidence.
This case is important in that the British Columbia Court of Appeal does comment on the use of the Spousal Support Advisory Guidelines. Specifically, that while Guidelines are useful for analysis of support, unlike the Child Support Guidelines:
“Nowhere in the Divorce Act are there comparable provisions requiring compliance with the Spousal support Advisory Guidelines or reasons deviating from them. As their name indicates, they are advisory and without statutory effect. That said, they provide helpful advice and this Court has been clear that their advice must be taken seriously and that best practice would include an explanation of any deviation from them.”