Understanding the Recent B.C. Supreme Court Decision on Child and Spousal Support Obligations
A recent B.C. Supreme Court ruling clarifying when child and spousal support obligations should end could have repercussions on divorce settlements across the province.
In the case of Johnson v Obert, Justice Kevin Loo ruled that Paul Obert’s support obligations would cease due to his circumstances having changed after a severe spinal injury, as well as the fact his youngest child had turned 19 and was no longer considered a child of the marriage. Additionally, Obert was deemed to have fulfilled his spousal support obligations after having made support payments for a period equal to the length of the marriage.
According to Vancouver divorce lawyer Harry Chahal with Clark Woods LLP, Loo’s decision has clarified what were previously murky legal waters in regards to the circumstances in which a party can have a support agreement changed or even thrown out. As a result, the decision is likely to have implications for many former couples with support agreements in place.
“This decision demonstrates that context is important for support purposes and that support ought to be revisited and adjusted according to the parties’ evolving circumstances and needs,” he said. “Parties should review their circumstances regularly to determine whether support is still payable.”
Support Adjustments in Light of Personal Changes
Obert and ex-partner Karen Johnson began living together in 1995 and separated in 2007 after close to 11 and a half years. After years of disputes over support payments, a 2016 judgment determined Obert’s annual income to be $110,000, ordering him to pay $2,537 in monthly spousal support and $1,000 monthly in child support.
While Obert had been meeting his child support obligations, he had fallen behind in spousal support payments to Johnson. In 2021, Obert suffered a severe spinal cord injury, resulting in a permanent disability and the loss of his job as a truck driver.
As the Family Law Act of British Columbia allows for support orders to be modified if significant changes in circumstances are proven, Loo determined that Obert’s injuries justified ending his spousal support obligations.
The Legal Framework for Ending Child and Spousal Support Payments
However, the court also agreed that Obert’s child support responsibilities should have concluded in 2018 when the former couple’s youngest child turned 18. Meanwhile, Loo referred to the Spousal Support Advisory Guidelines (SSAG) to determine that Obert’s spousal support should have also ended in 2018 due to the length of the marriage.
Paragraph 13.8 of the Spousal Support Advisory Guidelines provides two tests to determine the duration of indefinite spousal support, said Chahal.
“The duration of marriage test provides that the upper end for duration (sometimes called the high range) is one year of support for each year of marriage/cohabitation while the lower end is one-half year of support for each year of marriage,” he said. “The second test is related to the age of the Children of the Marriage. The upper end of the range for spousal support under this test is the date when the last or youngest child finishes high school.”
Debating the Fairness of Child and Spousal Support Arrears
While Loo decided that holding Obert liable for child and spousal support arrears after 2018 would “grossly unfair” given his obligation had ended, he also determined that the $15,973 in arrears accrued up to that date remained due.
“The first question to be determined is whether it would be grossly unfair not to cancel these arrears,” said Loo in his decision. “On one hand, Mr. Obert was capable of earning income at the time. Further, he properly owed these amounts to Ms. Johnson. On the other hand, Mr. Obert now submits that he does not have the funds to pay the arrears.”
However, it would also have been grossly unfair to deny Johnson the money she was rightfully owed, he determined.
“This is a case in which both parties are struggling financially,” Loo noted. “I must apply the ‘grossly unfair’ test having that in mind.”
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