Obtaining Interim Spousal Support

When parties separate, one party may seek spousal support between when the issue of spousal support is first heard and the point at which the court makes its final decision (for example, when the Court makes a divorce order or makes final orders with respect to property division and support). This is known as “interim spousal support.”

The recent case of Piva v. Piva, 2018 BCSC 670 [“Piva”], illustrates the factors a Court will consider when deciding whether to award interim spousal support.

In Piva, the claimant was 50 years old and the respondent was 55 years old. The parties were married for 28 years.

The claimant applied for interim spousal support.

Master R. W. McDiarmid began the analysis using the legal test under section 15.2(4) of the Divorce Act:

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.

Master McDiarmid further stated that the Court must also consider the following factors:

1. the applicant’s needs and the respondent’s ability to pay assume greater significance;
2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
4. The courts should not unduly emphasize any one of the statutory considerations above others;
5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
7. Interim support should only be ordered where it can be said a prima faciecase for entitlement has been made out;
8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

In Piva, the Respondent disclosed $183,688.45 in income for 2017 and the Master imputed income of $40,000.00 to the Claimant. The Master calculated the range of spousal support which could be paid by the Respondent to the Claimant based on the parties’ respective incomes and awarded the Claimant interim spousal support after considering the following fact:

• the Claimant had exclusive occupancy of the former matrimonial home, and once the appropriate spousal support order was made, the Claimant would be responsible for making all of the payments associated with the house;
• the Respondent’s Financial Statement set out expenditures of approximately $6,350.00 toward savings and debt payments. As well, $4,460.00 monthly was allocated toward income taxes which would be reduced substantially by a spousal support order [because spousal support is tax deductible to the payor and is taxable income to the recipient]; and
• the Claimant remained in the family home with no mortgage payments to be made.

The Master awarded interim spousal support payable by the respondent to the claimant in the amount of $5,000.00 per month.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.