Howell v. Howell

2025 BCSC 33 Howell v. Howell

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Howell v. Howell, 2025 BCSC 33 Date: 20250109 Docket: E51436 Registry: Kamloops Between: Karina Isabel Howell (aka Anhalt) Claimant And Dwaine Anthony Howell Respondent Before: The Honourable Justice Hori Reasons for Judgment Counsel for the Claimant: D. Komori Counsel for the Respondent: G.D. Whidden Place and Date of Hearing: Kamloops, B.C. September 3, 2024 Place and Date of Judgment: Kamloops, B.C. January 9, 2025 Introduction [1] The parties in this family law action began living together in 1994. At that time, the claimant was 24 years old and the respondent was 28 years of age. [2] The parties had their first child in 1995. They were married on April 17, 1999, and they had their second child in 2000. The parties separated on September 10, 2014. At that time, the parties' oldest child was no longer a child of the marriage. [3] On October 5, 2015, the court made an interim order that: a) set the respondent's income pursuant to the Federal Child Support Guidelines, SOR/97-175 [Guidelines] at $80,000 per year and declared that the claimant had no income; b) ordered the respondent to pay child support for the parties' youngest child in the amount of $689 per month; and c) ordered the respondent to pay spousal support in the amount of $1,617 per month. [4] On July 20, 2016, the court made a final order with the consent of the

parties (the "Final Order"). The Final Order was based upon the respondent's Guidelines income of $80,000 and no income for the claimant. The terms of the Final Order that are relevant to the issues now before the court are: a) the respondent will pay child support in the amount of $689 per month pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [DA]; b) the respondent will pay spousal support in the amount of $1,617 per month pursuant to the DA; c) The parties will exchange their financial information annually by May 1 and adjust child support as of June 1; d) The amount of support payable by the respondent to the claimant will be reviewed on application by either party on 30 days notice with the first review not to occur before June 1, 2017; and e) The claimant will forthwith advise the respondent of any change in her employment or income status. [5] The respondent discontinued his child support payments when the parties' youngest child turned 19 years of age in 2019. However, the respondent continued to pay spousal support in accordance with the Final Order. [6] In this application, the respondent seeks a review of the spousal support payable to the claimant. In particular, the respondent seeks to terminate the spousal support he pays to the claimant. Review of an Order [7] The Final Order provides that either party may review spousal support on 30 days notice to

the other party. A review of an order involves much different considerations than a variation of an order. The Court of Appeal set out the difference between a review of an order and a variation of an order in Morck v. Morck, 2013 BCCA 186, at paras. 15-17. [8] The Court held in Morck that s. 17(4.1) of the DA governs an application to vary an order. In a variation application, the court assumes that the existing order is correct and the applicant must establish that there has been a material change in the "condition, means, needs or other circumstances" of a party pursuant to s. 17(4.1) of the DA. [9] The Court held that in contrast to a variation application, in an application to review an existing order, the applicant need not establish a material change in circumstances. The review is a hearing de novo and is treated as an initial application for support under s. 15.2 of the DA. [10] The factors for the court to consider on an initial application for spousal support and on a review of spousal support are set out in ss. 15.2(4) and (6) of the DA which provide: Factors (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. [11] Flowing from the factors set out in s. 15.2 of the DA, the Supreme Court of Canada, in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 15, recognized three conceptual grounds for entitlement to spousal support. Those three grounds are: a) compensatory; b) non-compensatory; and c) contractual. [12] Accordingly, on an application to review a spousal support order, the court must determine the following issues: a) whether the entitlement to spousal support continues on any of the three conceptual grounds; b) if entitled to spousal support, what is the quantum of the support; and c) if entitled to spousal

support, what is the duration of the support. Entitlement to Support [13] A spouse is entitled to spousal support on any or all of the three conceptual grounds of entitlement. [14] The compensatory basis for spousal support recognizes the economic advantages and disadvantages arising from the parties' marriage or its breakdown. It addresses the contributions of the spouses to the relationship and seeks to apportion any financial consequences arising from the relationship or its breakdown, including the financial consequences arising from the care of any children of the marriage, between the spouses. Entitlement to spousal support on the compensatory ground arises when one spouse will continue to suffer the economic disadvantages of the marriage and its dissolution while the other spouse reaps its economic advantages. The Supreme Court described the entitlement to spousal support on the compensatory ground in the following way in Moge v. Moge, [1992] 3 S.C.R. 813: [68] Legislative support for the principles of compensation may be found in ss. 15(7)(a-c) and 17(7)(a-c) which are extremely broad in scope and which direct the court, in making or varying a support order, to recognize any economic advantages or disadvantages arising from the marriage or its breakdown, to apportion between the spouses any financial consequences arising from the care of children over and above those

consequences which have already been made the subject of child support and to relieve economic hardships arising from the marriage. As a matter of statutory interpretation, it is precisely the manner in which compensatory spousal support is able to respond to the diversity of objectives the Act contains that makes it superior to the strict self-sufficiency model. [15] The non-compensatory ground for spousal support is based on the theory that marriage creates a basic social obligation on one spouse to provide for the other, both during and after the relationship, rather than the public purse: Bracklow at para.

23. Non-compensatory spousal support addresses the needs of a spouse after the breakdown of the relationship. The needs analysis is more than determining whether a spouse is able to meet expenses. It requires an assessment of a spouse's needs relative to the marital standard of living and the other spouse's post-separation standard of living: Chutter v. Chutter, 2008 BCCA 507 at para. 88. [16] The contractual basis for spousal support recognizes the freedom of individuals to agree upon matters that affect them. However, an agreement on support may not be the decisive factor: Bracklow at para. 49. [17] In this case, at the time of the Final Order, the claimant had the basis for compensatory and non-compensatory spousal support. There is no evidence that a contractual basis for support ever existed. [18] However, in the present application, the question is whether the claimant has a continuing entitlement to spousal support. The respondent submits that she does not because he has satisfied the claimant's entitlement to support through a combination of the claimant's re-partnering with a new spouse and the respondent's payments of spousal support to date. [19] Whether the claimant's spousal support is based on the compensatory or non-compensatory principles, the issue of ongoing support is determined, in this case, by the re-partnering of the claimant. The claimant began her

relationship with her new partner when he moved into the former family home in 2015. The claimant and her new partner were married in 2020. [20] The claimant's new partner is a logging truck driver. His historical and current income is unclear. There is no financial information related to his income before 2021. However, in her 2021 income tax return, the claimant declared her partner's net 2021 income as $94,733. However, the claimant deposes, in her 6th Affidavit, that in 2022, her partner had a net loss of income and in 2023 had an income of only $12,717. The explanation for the significant drop in income is that the business of hauling logs had been poor. [21] I find it hard to accept that a business that generated $94,000 in net income in 2021 would be reduced to a net loss within one year without more of an explanation than the log hauling business was poor. In any event, the 2021 net income at least establishes that the claimant's new partner has the capacity to earn $94,000 per year. [22] Justice Barrow in K.A.M. v. P.K.M, 2008 BCSC 93 [K.A.M.], analyzed the effect of re-partnering on spousal support. Justice Barrow established the following general principles: a) Re-partnering does not necessarily terminate a spouse's entitlement to support and may not, at least initially, have much effect on the quantum of support particularly where the entitlement is conceptually

based on the compensatory theory (para. 69); b) As the recipient spouse's relationship matures, the concept of "merger over time" suggests a growing obligation on the new spouse in the new relationship to support the former spouse of the first relationship (para. 72); c) The concept of "merger over time" informs the determination of quantum and duration of support; and d) To the extent that there is a growing obligation on the new spouse it is reasonable to reduce the obligation of the first paying spouse over time (para. 72). [23] The concept of "merger over time" incorporates both compensatory and non-compensatory rationales for spousal support. It is a concept upon which the "without child support formula" was developed in the Spousal Support Advisory Guidelines. The concept recognizes that as a relationship lengthens, spouses merge their economic and non-economic lives more deeply. [24] When a spouse who receives spousal support (the "Recipient Spouse") re-partners, the burden is on the Recipient Spouse to demonstrate that, despite the re-partnering, there is a continuing basis for spousal support: Kelly v. Kelly, 2007 BCSC 227, citing Friesen v. Friesen, [2004] B.C.J. No. 2224 and Witt v. Witt, [1991] B.C.J. No. 772. [25] In K.A.M., the parties married in 1982. They separated 21 years later in 2003. Shortly after the separation, the Recipient Spouse entered into a new

relationship which was ongoing. The Recipient Spouse earned approximately $40,000 per year as compared to the payor spouse's annual earnings of $95,000. In these circumstances, Barrow J. applied the principles he had established by reducing the spousal support payable by 10% for each year that the new relationship continued after the first year. Based on this formula, the spousal support would reduce to zero in ten years when the Recipient Spouse would be in her mid-50s: K.A.M. para. 72. [26] In the case before me, the parties were in a long-term marriage of 20 years. The claimant is currently 55 years of age. She commenced her new relationship shortly after the parties separated and that new relationship has existed for nine years. The income of the respondent and the claimant's new partner fluctuate year by year, but they are capable of earning similar levels of income. These circumstances are strikingly similar to the facts in K.A.M. [27] Accordingly, I find that by virtue of the re-partnering of the claimant, the spousal support payable to her ought to have been reduced at the rate of 10% per year commencing on July 20, 2017. [28] Reducing spousal support at the rate of 10% per year will result in no support payable after June 1, 2026. Therefore, the respondent's obligation to pay spousal support would end on June 1, 2026, if he had reduced the support payments annually by

10%. However, the respondent has paid the full amount of the spousal support since July 20, 2016, which means that he has paid more than what was required under this analysis. [29] Accordingly, I will terminate the respondent's obligation to pay spousal support to the claimant effective immediately because the excess amount paid by the respondent more than covers the payments remaining to June 1, 2026. [30] With respect to any over-payments in spousal support based on this analysis, the claimant is not required to reimburse the respondent. It was incumbent upon the respondent to make this application in a timely manner, but he did not do so. The claimant, no doubt, relied upon the spousal support payments she received when making financial decisions. It would not be equitable to require her to repay those support payments in these circumstances. [31] In arriving at this conclusion, I have considered that the respondent discontinued paying child support for the parties' youngest child in 2019, but did not increase the amount of spousal support. I have also considered that the claimant conceded during this application that her efforts to become self-sufficient were not reasonable, but the parties made no adjustment to her income for the purposes of spousal support. In my view, these two considerations roughly cancel each other such that they would have had minimal, if any, effect

on the quantum of spousal support. Costs [32] The respondent has been successful in this application. Therefore, he should have his costs of the application. However, if there are circumstances that are not before the court that impact on the issue of costs, the parties have leave to make submissions on costs if they cannot agree. [33] If costs submissions are necessary, the parties will schedule a costs hearing within 60 days. "D.K. Hori J." HORI J.