Brouwer v. Brouwer

2019 BCSC 274 Brouwer v. Brouwer IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Brouwer v. Brouwer, 2019 BCSC 274 Date: 20190301 Docket: 01-5010 Registry: Victoria Between: Karen Elaine Brouwer also known as Wren Katzalay Claimant And: John Gerald Brouwer Respondent Before: The Honourable Mr. Justice Punnett Reasons for Judgment Counsel for the Claimant: W. Murphy-Dyson Counsel for the Respondent: K.V. Sacca Place and Date of Hearing: Victoria, B.C. December 3, 2018 Place and Date of Judgment: Victoria, B.C. March 1, 2019 Introduction [1] The 60-year-old respondent (applicant) applies to terminate spousal support to the 58-year-old disabled claimant because of his loss of employment and involuntary retirement. He also seeks to end child support for their daughter because she is no longer a "child of the marriage" as defined in the Divorce Act, R.S.C. 1985 (2nd Supp), c. 3, s. 2(1). Background [2] The parties were married on August 29, 1992, separated on December 1, 2000, and divorced July 9, 2003. Their daughter was born in January 1994. She completed her post-secondary studies at the University of Victoria in 2017 and is now 25 years old. [3] The parties were together just over eight years. When the parties separated the claimant was 40 and the respondent was 42. The respondent provided interim spousal and child support to the claimant after separation, as summarised in an order of April 22, 2002: a. interim spousal support of $2,900.00 per month to be paid commencing on May 1, 2002, based on a Spousal Support Advisory Guidelines [SSAG] income of $112,950.00; b. declaration that the respondent had paid interim support of $4,156.00 per month from January 1, 2001 to February 1, 2002 and $3,728.96 per month from March 1, 2002 to April 1, 2002; c. child support of $836.00 per month to be paid commencing May 1, 2001. [4] On July 9, 2003 a final consent order was entered concerning child support, spousal support, and division of property. This final consent order also provided for parenting time; however, the respondent and his daughter have since become estranged and no longer have a relationship. [5] The relevant clauses of the final consent order provided: 4. The Defendant shall pay to the Plaintiff the sum of $900.00 per month for the support of the child payable on the 1st day of each and every month, commencing on the 1st day of May, 2003 and continuing for so long as the child is a "child of the marriage" as defined in the Divorce Act. 5. The Defendant shall pay to the Plaintiff 70% of reasonable extraordinary expenses for the child of the marriage which at the present time consist of play therapy and Viva Choir costs but which could in the future include horseback riding, singing lessons, tennis lessons and gymnastic lessons. 6. The Defendant to pay to the Plaintiff spousal maintenance in the sum of $3,000.00 per month payable on the 1st day of each and every month, commencing on the 1st day of May, 2003; 7. Spousal maintenance shall not be subject to variation for any reason, except the death or remarriage of the Plaintiff or a change of employment of the Defendant over which he has no control, for a period of two years regardless of any change in circumstances and thereafter subject to variation where there is a material change in circumstances in accordance with the provisions of the Divorce Act [6] The respondent paid child support from the time the parties separated until December 2017, and continues to pay spousal support under the final consent order. He paid the ordered child support of $900.00 every month from May 2003 to August 2011, including the 10 months his daughter spent in Japan on a Rotary Youth exchange, for which he also covered 70% of expenses. Beginning in September 2011, he paid increased child support of $1,111.28 per month, and continued to pay that amount until December 2017. He also deposes that he paid an average of over $600 a year for his daughter's guitar, voice and dance lessons; private school fees of $3,400 in 2007, $5,928 in 2008, and $5,928 in 2009; and contributed at least $15,000 towards her university tuition. [7] Following confirmation from the Family Maintenance Enforcement Program (FMEP) in September 2017 that they would no longer be monitoring or enforcing child support as of December 18, 2017, the respondent ceased paying child support to the claimant, with the last payment made in December 2017. As noted above, their daughter is now 25, and although she was initially dependent on the claimant for maintenance and support after her graduation and may become so again, as of November 2018 she was traveling independently overseas. [8] The respondent has paid spousal support as follows: 1. $4,156.00 per month from January 1, 2001 to February 1, 2002, 2. $3,728.96 per month from March 1, 2002 to April 1, 2002, 3. $2,900.00 per month from May 1, 2002 to April 1, 2003, 4. $3,000.00 per month from May 1, 2003 to the date of the hearing. [9] By the respondent's calculations, he paid over $628,441.92 in spousal support between 2001 and the middle of 2018. [10] During the parties' marriage, the respondent was initially employed with the Province of British Columbia and thereafter with Telus Communications Inc. Before the marriage the claimant had been employed as a chef with a diploma from Le Cordon Bleu in Paris, as a caterer, as an event manager, and as a bookstore manager. She ceased working after the parties married and, beginning in 1997, attended the Victoria College of Arts on a full-time basis for two years. She missed much of the 1997-1998 year due to health issues, and had to make it up in the summer of 1998. Her classes in 1998-1999 consisted of one class a week, and she graduated in 1999. Thereafter, she pursued a career as an artist but "did not make any money at painting." [11] The claimant's 2003 discovery evidence, which is before me as Exhibit F to the respondent's third affidavit, reveals a long history of health problems and related limitations on her activities both before and during the parties' marriage. Indeed, that evidence suggests that some of her health problems were exacerbated by the parties' joint decision to attempt to conceive a child through in vitro fertilization. As a result of that failed attempt, the claimant required a full hysterectomy, and remained on hormone replacement therapy until at least late 2003. At the time of discovery, her health was so poor that performing basic household chores and caring for the parties' daughter consumed all of her limited energy each day. Under the 2003 consent order, the claimant received the majority of the proceeds of the sale of the family residence, while the respondent assumed responsibility for all family debt, including a joint line of credit, credit cards, and a portion of the claimant's income tax liability. Their property division had the net result that the claimant received $81,369.63 in family property and the respondent ended up with a deficit of $14,923.63. [12] The claimant also received $15,000 of the respondent's RRSPs in a spousal rollover, part of his Telus and B.C. Government pensions, divided CPP credits, and one-half of his Telus shares. [13] In coming to the consent terms of the July 9, 2003 order, the respondent deposes that he relied on the claimant's statements under oath in her examination for discovery and other evidence that she was completely disabled and unable to spend over 20 minutes at a time doing any activity, including painting or drawing. Since then, the respondent has discovered information that he says supports a finding that the claimant continued to pursue a career as an artist until at least 2013, including selling art on her now-defunct website and participating in art exhibits in Victoria, Alberta and France. [14] The claimant deposes that she has been "unable to be gainfully employed for many years and certainly at the time of the [final order]" in 2003. She does not deny that she continued to paint between 2003 and 2013, but says she sold very few paintings during that period and failed to generate enough income from painting to cover the cost of her materials. She deposes she has lacked the energy or stamina to do any painting since 2013, and is now "unable to work or otherwise earn an income" due to her disability. She appends a "medical report" from her present family doctor dated October 1, 2018, in which he states he has been treating her for severe chronic pain since 2003 due to Tarlov cysts, which impinge upon her spinal cord and nerves. He reports that she also suffers numbness and tingling in her legs, and states: This patient also has been diagnosed with spondylitis (arthritis of the spine), sacroiliitis, bursitis, osteoarthritis, severe migraine headaches with protracted episodes of vomiting, degenerative disc disease, esophageal reflux, osteopenia, asthma, irritable bowel syndrome, Raynaud's phenomenon and chronic sinus disease. Unfortunately, this patient is unable to work at any occupation due to her daily and severe pain. She is permanently disabled, and her ability to walk, and perform household tasks is extremely limited, and I expect this to worsen. The prognosis of Tarlov cysts causing this degree of nerve pain is for progressive and severe impairment, indefinitely. This patent will likely lose her independence and require full-time care in a nursing facility. [15] The claimant earned no income from her painting during or after the parties' marriage. While painting may have been a career she wished to pursue and succeed at, it was apparent early on that it was not a career that would on any reasonable basis provide her with self-sufficiency. She has produced no evidence of any effort to obtain or try to work at other employment between the parties' separation and 2013, simply asserting that she was disabled during that time. Although I am not satisfied that the claimant made reasonable efforts to contribute to her own support between the parties' separation and 2013, I accept she is now permanently disabled and unable to work at any occupation. [16] From the time of separation through to June 30, 2017, the respondent was employed by Telus Communications Inc., most recently as a Customer Solutions Architect at a salary of $153,087. On June 27, 2017 his position with Telus was terminated effective June 30, 2017 because of corporate restructuring. He was provided with a salary continuation in addition to some benefits until August 3, 2018, and is entitled to an additional lump sum severance payment of $55,000 (less income tax and statutory deductions), which will result in approximately 18 months' severance. [17] The respondent is in a new relationship. He and his new partner have resided together since March 2014. [18] The respondent had not planned to retire at 59 and has sought other employment. Since receiving the termination notice in June 2017, he has worked with Right Management Manpower Group as part of the outplacement services offered through Telus. He has determined that Shaw, Bell or Rogers do not employ anyone in the Victoria area in a capacity similar to his former position as a Customer Solutions Architect. He deposes that he has made a diligent search for employment, including advertising to employers throughout Canada and the United States by posting his resume on the manpower group's online job board. However, he has received no interest from any potential employer. He further deposes that: 39. At almost 60, I believe I may no longer be as competitive in the job market as I may have once been, especially seeing people of my age repeatedly phased out in the course of my employment with Telus. 40. To the best of my knowledge, the only employer who may have a need for an employee with my skillset is the provincial government. I have been following up with a number of my former clients within the BC public sector and have been actively searching on the public sector employment website searching for suitable employment opportunities but have not found anything thus far. 41. Moreover, I understand that my starting salary, if I were to find a position within the public service would likely be about half of what I earned at Telus or approximately $70,000 to $75,000 per year for grid level 30, which would be the most likely level for me based upon my work experience. [19] In December 2016 the respondent and his partner purchased their current home at 9251 Lochside Drive, North Saanich, B.C. The respondent contributed $47,000 to its purchase and his partner contributed $711,500. They jointly secured a mortgage of $604,000. The respondent has an undivided 10/100th interest, reflecting his proportionate contribution to the down payment on the property. The 2018 B.C. Assessment value of the home was $1,312,000. The home remains encumbered with the mortgage. The respondent deposes that he has assumed responsibility for 68% of the mortgage in order to make his equity in the property closer to 33% in the long term. [20] The respondent's net worth has increased since the parties separated. The respondent notes it consists primarily of his pension and RRSPs acquired after separation. His retirement savings consist of: a) Group Manulife RPP and RRSP $516,933.19 b) Personal RRSP and savings $285,025.50 c) CPP and OAS Value unknown [21] Based on Manulife's Retirement Calculator Report, the respondent anticipates an income of $56,079.17 per year in total from the above sources. Some of his pension income will be derived from his share of the pension credits previously divided with the claimant. Specifically, his Telus and B.C. Provincial Government pension credit were divided under Part 6 of the Family Relations Act with a start date of August 29, 1992 and an entitlement date of November 29, 2001. [22] He estimates his annual income from the B.C. Provincial Government pension will be $3,900.00 per year, which represents income derived entirely from the pension credits previously divided with the claimant as he did not work for the provincial government after their separation. [23] When the parties divided the respondent's Telus pension credits equally on November 29, 2001, they each received $21,184.49. Applying Manulife's regularly reported rates of return, the present value of each amount is approximately $54,328.26, representing about 11.8% of his total Manulife RPP. The respondent estimates that of his estimated annual Telus pension income of $20,218.96, approximately $2,385.84 will be derived from pension credits already divided with the claimant. [24] The respondent and his partner have also prepared a basement suite in their home, which is rented out to short-term guests through Airbnb and VRBO. Between May 14, 2018 and December 28, 2018, they rented it out for a gross of $18,504.28. Their expenses relating to the rental suite - including the occupancy tax, cleaning, food for guests, interest on a loan for the construction and furnishing of the suite, and a portion of the property tax, water and sewer fees, home insurance, and shared internet - amounted to $6,530.37, for a net income of $816.30 per month. His proportionate share is $269.38 per month. On that basis, the respondent submits he will make approximately $3,200 per year in suite rental income. [25] There is some dispute over the respondent's decision to deduct a portion of the property tax, water and sewer fees, home insurance, and shared internet when calculating his net income from the rental suite. The claimant only acknowledges the legitimacy of income deductions for the occupancy tax, cleaners, and food for guests, which total approximately $3,000. She submits that while the other expenses may be legitimate tax deductions, they are not appropriate expenses to deduct from the respondent's income in a spousal support context. [26] With these more limited deductions, the rental suite income would increase from $6,530.37 to approximately $15,000 over eight months, and the respondent's share of that would be approximately $5,000, which can be extrapolated to $7,500 per year. [27] I am satisfied that the respondent's overall income from all sources will be somewhere between $60,000 and $70,000 per annum, assuming he remains retired. [28] The claimant has a condominium, acquired in August 2015, with a value of $400,000, a first mortgage balance of $84,199.31, and a line of credit debt of $11,682.96. She has RRSPs with a total value of $152,229.00, of which $105,643.68 is locked in. Her expenses are relatively modest at $3,321.21 per month. Her sole source of income is monthly spousal support of $3,000. She states she does not want to end up on "welfare." [29] The respondent asserts the following income should be available to the claimant as a person with disabilities if she is not receiving spousal support: The Claimant should have income of approximately $27,000 per year available to her: a. If the Claimant is disabled, she can apply for Persons with a Disability (PWD) benefits currently $1,185.42 per month or $14,225.04 annually which is non-taxable plus a broad range of medical and dental benefits ... b. If the Claimant begins drawing upon her LIRA of $105,643 by converting it into a LIF (locked in fund) it can be withdrawn at a current rate of 6.7% annually for a withdrawal of $7,078 increasing annually as listed on the 2018 Registered Plan minimums and Maximums attached c. The RRSP of $46,584 can be withdrawn at a rate of $2,967 per year to age 90 as shown on the attached Manulife Retirement Calculator d. The claimant is eligible for CPP benefits of at least $230 per month or $2,760 per year as at age 60. Position of the Respondent [30] Respecting child support, the parties' daughter is now an adult, has completed her education, and is able to withdraw from parental care. The respondent submits his obligation to pay child support should have ended in December 2017. [31] Regarding his spousal support obligations, the respondent submits that he is, through no fault of his own, unemployed, and that given his age and training, he has been unsuccessful in obtaining employment. He says there has been a material change in his circumstances. He also asserts that the claimant's physical limitations have not been as significant as he thought and have changed since 2003, or did not prevent her from contributing to her own support until 2013. [32] In particular, the respondent seeks: 1. An order varying the Final Order of this Court dated July 9, 2003 as follows: (a) That spousal support payable by the Respondent be terminated effective July 31, 2018; (b) In the alternative, that spousal support be reduced by an amount to be determined by this Court effective July 31, 2018 and terminated on a date to be fixed by the court; (c) That child support and special expenses payable by the Respondent for [the parties'] daughter terminated effective December 31, 2017 Position of the Claimant [33] Respecting child support the claimant concedes it should cease as of December 17, 2017 if "the Court considers it appropriate." She makes no application for retroactive child support based on undisclosed increases in the respondent's income despite her complaints of his alleged past failure to disclose such increases. [34] She opposes the respondent's application to end payment of spousal support. She submits that her health in 2003 was such that she had limited ability to be employed, and that since then her health has worsened and she is now permanently disabled and unable to work at any occupation because of severe pain. She further submits that there has been no material change in circumstances since the final order. [35] She also says that the spousal support ordered in 2003 was both compensatory and needs-based: compensatory because she undertook primary responsibility for raising their daughter both during and after the marriage, and needs-based because of her inability to work. [36] The claimant places particular emphasis on a comparison of her limited means with those of the respondent, as well as the fact that he is healthy and qualified to work. She submits that if one compares the equities and the parties' very different standards of living, society would find depriving the claimant of her sole source of income shocking, unjust, and unfair. Issues [37] The issues can be described as: a) Is the parties' daughter still a "child of the marriage" who is entitled to support? b) Is the respondent still obligated to pay spousal support, and if so, in what amount? Law and Discussion Child Support [38] Section 2(1) of the Divorce Act states: child of the marriage means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [39] It is clear that the parties' daughter is no longer a child of the marriage for whom the respondent has support obligations. As the claimant acknowledges, their daughter has completed university and is now travelling independently. The claimant does not oppose the requested termination of child support. [40] I find that child support ceased being payable as of December 17, 2017. There are no arrears. Spousal Support [41] On an application to vary a spousal support order, s. 17(4.1) of the Divorce Act states: Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [42] The required change in the condition, means, needs or circumstances of either former spouse must be "material" in the sense that had it been known at the time of the order, it would likely have resulted in different terms (Willick v. Willick, [1994] 3 S.C.R. 670). Whether a material change is made out will depend on "what the parties actually contemplated at the time the order was entered," not "what one party knew or reasonably foresaw" at that time: Dedes v. Dedes, 2015 BCCA 194 at para. 25 (emphasis in original), citing L.M.P. v. L.S., 2011 SCC 64. [43] If the threshold test for variation is met, then the court approaches any variation based on the objectives in s. 17(7) of the Divorce Act. [44] Section 17(7) provides: (7) A variation order varying a spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former 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 former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [45] Retirement has been held to constitute a material change in circumstances. In Peters v. MacLean, 2014 BCSC 990, Joyce J. addressed the issues: [27] A substantial reduction in the payor's income due to retirement can be a material change of circumstances, but that is not always the case. [28] In Boston v. Boston, 2001 SCC 43 [Boston], the majority held that there was no reason per se that spousal support cannot continue past the date of retirement of a pension-holding spouse. The payor may apply for a variation, but will be required to demonstrate that there has been a material change in circumstances. The reduction in income following retirement may be such a material change. [29] [T]here are a number of cases where reduction in the payor's income due to retirement has been held to be a material change of circumstances. See, for example: Cramer v. Cramer, 2000 BCCA 272 [Cramer]; Burroughs v. Burroughs, 2004 BCSC 7 [Burroughs]; Stones v. Stones, 2004 BCCA 99 [Stones]; and Butler v. Butler, 2013 BCSC 315 [Butler]. [30] In both Cramer and Burroughs, the courts considered the fact that the payor spouses would have to encroach on their capital in or[der] to continue paying spousal support in deciding that retirement constituted a material change of circumstances. [32] In my view, it is necessary to consider the particular facts of each case to determine whether a substantial reduction in income will constitute a material change of circumstances [33] One of the considerations in deciding whether a retiring spouse can establish a material change of circumstances is whether the retirement is at a time that is in advance of when he might be expected to retire and whether it is voluntary (voluntary early retirement) or was forced upon the payor by circumstances beyond his control, including the decision of his employer or health considerations. The important consideration in cases where the payor is not forced to retire is his intention when the decision was made. As I stated in Butler, at para. 39: [39] the application may be refused where the change of circumstance is voluntary early retirement or withdrawal from the work force if it was brought about with the intention of frustrating a support order or without some satisfactory reason. [46] The respondent submits that his loss of employment and unplanned early retirement constitutes a material change. There is no evidence that the parties contemplated his eventual retirement at the time the final order was entered, and other than in the division of assets, did not address the effect his retirement would have on spousal support. [47] The final consent order did recognize that a material change in circumstances could result in the spousal support order being varied after at least two years had passed. Prior to that time, spousal support could only have been varied for a narrower set of enumerated reasons, one of which was "a change of employment of the Defendant over which he has no control." In my view, the fact that the respondent's current circumstances would likely have qualified as a valid reason for variation in the first two years after the order was made supports an inference that they also constitute a "material change." [48] It is not seriously disputed that the respondent's early retirement was not his choice. There is no evidence that the respondent's retirement is motived by an ulterior motive such as avoiding support obligations, as noted by Weatherill J. in McCallum v. McCallum, 2015 BCSC 837: [52] In my view, the question that needs to be asked in a situation, such as here, where the payor spouse is not working is this: if the payee spouse and payor spouse were still happily married and the payor spouse's employment was terminated, would the payor spouse still say he/she was going to retire? If the answer is yes, then he/she should be allowed to retire and his/her support obligations should cease. If the answer is no, then there could be an ulterior motive involved to avoid ongoing support obligations. [49] The respondent is now 60 years of age. Potential employment opportunities for someone with his particular expertise and experience are limited. He has sought new employment, but so far with no success. The claimant says the respondent's efforts to obtain employment have not been sufficiently placed in evidence, given a lack of copies of his applications for employment or responses from potential employers. The claimant also submits that instead of seeking work, the respondent has spent his time renovating his home to have a suite created for rental. However, there is no evidence to suggest that project has prevented him from simultaneously seeking employment. His evidence that he has looked for work without success is not contradicted. Nor is there evidence that positions for an individual of his background and training are available in the Victoria area. In my view, he cannot be criticized in any event for building a suite to create income through rentals. [50] I am satisfied, given the evidence before me, that the respondent's age, his background, and a lack of appropriate employment positions make the possibility of future full-time employment uncertain at best. In my view, the respondent has established a material change in circumstances that warrants a variation of his spousal support obligations in accordance with the objectives set out in s. 17(7) of the Divorce Act. [51] As noted above, any variation order should recognize any economic advantages or disadvantages arising from the marriage or divorce; apportion any financial consequences arising from child care; relieve any economic hardship arising from marriage breakdown; and, if practicable, promote each party's economic self-sufficiency. This often involves considering whether the original spousal support order was compensatory, non-compensatory, or both: see, for example, Walters v. Walters, 2011 BCCA 331. [52] In Zacharias v. Zacharias, 2015 BCCA 376, the Court of Appeal explained compensatory and non-compensatory support in the following terms: [26] Compensatory entitlement will arise where, as a result of the parties' roles during the marriage, one spouse has suffered economic disadvantage or has conferred economic advantages on the other. Most often, such entitlement will arise where one spouse has sacrificed career opportunities in order to take on more of the family's household or child-rearing responsibilities. Upon the dissolution of the marriage, the spouse who has given up opportunities may be entitled to spousal support, either to compensate for diminished earning capacity, or to share in the augmented earning capacity of the other spouse. The main goal of compensatory spousal support is to provide for an equitable sharing of the economic consequences of the marriage (see Moge v. Moge, [1992] 3 S.C.R. 813 at 858-66). [27] Non-compensatory support entitlement focuses on the needs of the spouses and on their respective means. It is based on the idea that spouses, by virtue of marriage, have some ongoing responsibility to care for one another. The degree to which non-compensatory principles will apply will depend on a close examination of not only the means and needs of the spouses, but also of the nature of the marital relationship and its duration (see Bracklow v. Bracklow, [1999] 1 S.C.R. 420, particularly at para. 53). [53] The court in Zacharias went on to specify that when a spousal support order is both compensatory and non-compensatory, "the award is a single and indivisible one," and "the whole of the award is available to address both compensatory and non-compensatory goals" (at para. 39). [54] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, McLachlin J. (as she then was) discussed some of the principles that apply to non-compensatory spousal support when the payee is disabled: [1] What duty does a healthy spouse owe a sick one when the marriage collapses? It is now well-settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union. But what happens when a divorce -- through no consequence of sacrifices, but simply through economic hardship -- leaves one former spouse self-sufficient and the other, perhaps due to the onset of a debilitating illness, incapable of self-support? Must the healthy spouse continue to support the sick spouse? Or can he or she move on, free of obligation? That is the question posed by this appeal. It is a difficult issue. It is also an important issue, given the trend in our society toward shorter marriages and successive relationships. [13] Is a sick or disabled spouse entitled to spousal support when a marriage ends, and if so, when and how much? More precisely, may a spouse have an obligation to support a former spouse over and above what is required to compensate the spouse for loss incurred as a result of the marriage and its breakdown (or to fulfill contractual support agreements)? I would answer this question in the affirmative. [55] However, McLachlin J. went on to note that while "marriages are generally premised on obligations and expectations of mutual and co-equal support," the "presumption of mutual support no longer applies" when a marriage ends, and the court must determine spousal support obligations "by reference to a variety of objectives and factors" that balance competing theories of independence and interdependence (at paras. 20-26). [56] Bracklow establishes that "in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less" (at para. 48). When the payor spouses in both Chalmers v. Chalmers, 2009 BCSC 517, and McCarter v. McCarter, 2016 BCSC 2499 (Chambers), applied to terminate spousal support to their disabled former partners upon retirement they were ordered to continue paying support indefinitely at a reduced rate. [57] However, both Chalmers and McCarter involved long-term marriages of 25 years or more. When a disabled recipient spouse is unable to work after a shorter-term marriage, a payor spouse is not "required to indemnify in whole or in part a former spouse for his or her needs for as long as he or she is in need." Rayvals v. Rayvals, 2008 BCSC 176 at para. 27. The disabled recipient in Rayvals had been receiving spousal support for ten years, and was given 16 months to organize her financial affairs before spousal support was terminated. [58] In this case, the claimant submits the final consent order was primarily a compensatory order based on the role she had during and after the marriage as primary parent to their daughter. The respondent argues to the contrary that the spousal support was based on non-compensatory entitlement. [59] There is some evidence the claimant was limited in her ability to support herself because of the marriage. Her health problems were exacerbated by the parties' decision to attempt fertility treatment. Although the claimant was able to pursue her education during the marriage despite her child care responsibilities, she assumed increased child care responsibilities after separation and at the time of the order taking care of the parties' daughter was consuming much of her limited energy. The claimant's current lack of self-sufficiency predominantly arises from her ill-health, and as such may justify an ongoing non-compensatory support obligation even if the respondent's compensatory entitlement has been satisfied. [60] However, the respondent notes that the SSAG suggest that spousal support ought to have been paid at a range of $2,517 (low), $2,827 (mid) and $3,136 (high). The duration suggested is classified as "indefinite" with a minimum duration of 4.5 years and a maximum duration of 9 years. Although the SSAG are non-determinative, I note the respondent has been paying spousal support at the higher end of this range for much longer than the suggested maximum duration. [61] In Powell v. Levesque, 2014 BCCA 33, Smith J.A. held as follows: [41] The respondent's entitlement to spousal support is based on need. During the parties' relationship, the appellant supported the respondent and the respondent became financially dependent upon that support. Following the parties' separation, the respondent's contractual support and the court-ordered support in the Consent Order was necessary in order to assist the respondent in addressing the economic hardship that she experienced as a result of the breakdown of the relationship. The issue, then, is whether, after 12 years, and in [the] face of the appellant's material change in circumstances and the respondent's continuing need, the appellant should be required to pay some amount of spousal support. [42] The quantum of support includes both amount and duration. In considering an appropriate order, this Court has cautiously applied SSAG in variation and review proceedings following a fact-specific inquiry: see Beninger v. Beninger, 2007 BCCA 619, 47 R.F.L. (6th) 11; Domirti v. Domirti, 2010 BCCA 472, 10 B.C.L.R. (5th) 281; Morck v. Morck, 2013 BCCA 186, 44 B.C.L.R. (5th) 235. The circumstances that gave rise to the respondent's initial entitlement to support remained essentially the same for the variation application. The respondent continues to have few assets, she is unable to work by reason of her disability and other serious health issues, and she has an ongoing need for support. The appellant continues [to] have the larger income albeit it has significantly decreased since the Consent Order. In these circumstances, I am satisfied SSAG can offer guidance in determining the appropriate order. [43] Assuming an eight-year relationship, an annual income of $52,000 for the appellant, and an annual income of $13,277 for the respondent, the SSAG "without child support" formula yields a range of spousal support in the amount of $387-$516 and a duration in the range of 4-8 years. At the time of the application, the appellant had paid spousal support of $500, which had increased to $658 (as of December 2010), for a period of 12 years. In these circumstances, I am of the opinion that the appellant's obligation to pay spousal support has been discharged and the respondent's entitlement to spousal support is at an end. [44] In the result, I would allow the appeal, set aside the order of the chambers judge, and order that the provisions of the Consent Order relating to spousal support be rescinded and the appellant's spousal support obligation be terminated. [62] In my view, the reapportionment of assets to the claimant in 2003, the length of the relationship, the parties' roles during the marriage, the claimant's pursuit of a career as an artist without remunerative results, the length of the separation, and the respondent's payment of spousal support for all of those years collectively lead me to conclude that the respondent's obligation to pay spousal support has been substantially discharged. Although the claimant has an ongoing need for financial assistance, the respondent is not "required to indemnify" her forever. The time has come to fix a date for the termination of spousal support, and the level of the support that remains to be paid in the meantime shall be reduced. [63] The respondent's income is estimated to range between $60,000 and $70,000. For the purposes of the SSAG, an income of $65,000 would generate a range of $650 to $867. However, the SSAG should be approached with care on variation applications. Achieving the right result in a complex variation case of this type "is not necessarily a matter of arithmetic" because "complicating factors" such as a payor's retirement and a payee's disability "may limit the usefulness" of the SSAG: McCarter at para. 31. [64] Taking into account the respondent's reduced income, his current assets, the fact that his expenses are reduced by sharing living expenses with his partner, and the fact that any spousal support payments are tax deductible, I find that continued support above the range suggested by the SSAG is appropriate in the short term. I fix the respondent's reduced spousal support obligation at $1,500 a month, effective March 1, 2019. [65] As the claimant presumably will need to avail herself of whatever social programs are available to her and will require time to make the necessary applications and arrangements, her entitlement to spousal support shall end May 1, 2020. Upon such payments being made, the respondent will have discharged his obligation to pay spousal support. [66] The parties did not address costs. If they are unable to reach agreement on costs they have liberty to apply. "The Honourable Mr. Justice Punnett"