In relation to orders for spousal support based on compensatory factors, re-partnering will generally (but not always) be irrelevant.
In Rozen, the parties were divorced after 20 years of marriage. The parties had entered into a settlement in 1997, at which time they agreed that spousal support would be $2,350.00 per month, and the ex-wife would receive a small reapportionment of family assets. The terms of the settlement stated that spousal support could be reviewed if Ms. Rozen’s share of her father’s estate exceeded $200,000. The husband applied for a review of spousal support. The same amount of spousal support was ordered to continue indefinitely, based on compensatory factors: 2003 BCSC 973.
In the years since the 2003 decision, Mr. Rozen remarried and retired, and Ms. Rozen began living with a new partner. Her annual income without spousal support was found to be $42,300.00. Her partner’s annual income was $100,000.00. Her father died in 1997 and his estate had not yet been settled. She had received $179,000.00 from the estate and anticipated receiving an additional $350,000.00- $450,000.00. At the time of the application to vary spousal support, Mr. Rozen had $1,500,000.00 in assets, Ms. Rozen $1,350,000.00, excluding any further inheritance.
Mr. Rozen applied to vary the spousal support payable. The chambers judge concluded that a material changei n circumstances had occurred by Mr. Rozen’s retirement, but did not vary the amount of spousal support payable, finding the inheritance and repartnering of Ms. Rozen irrelevant. There remained significant disadvantages to Ms. Rozen arising from her relationship to Mr. Rozen.
The chambers judge concluded that compensation had not yet been achieved. The parties had a long, traditional marriage where Ms. Rozen’s sacrifices allowed Mr. Rozen to pursue ambitious career plans. Ms. Rozen would never earn a similar income or be in the workforce long enough to build up a substantial pension income. Further, the amount of spousal support that Mr. Rozen was paying was below the mid-range SSAG amount for his current, post-retirement income.
Referring to Chutter v. Chutter, 2008 BCCA 507; Zacharias v. Zacharias, 2015 BCCA 376; and Tedham v. Tedham, 2005 BCCA 502; and Morigeau v. Morrey, 2015 BCCA 160, the Court of Appeal stated:
[55] The ultimate question in this case is whether the recipient has continuing entitlement to compensatory support. The extent to which economic benefits conferred and detriments received from marriage or its breakdown have been fully compensated by spousal support to date is the dominant consideration. Re-partnering “generally” does not redress the basis for compensatory support: Morigeau at para. 39. Therefore, the new partner’s means will generally not be relevant in variance applications of compensatory orders.
[56] However, there is no bright line rule that re-partnering will never be considered on a variation of a compensatory order. It may be relevant for instance, as it is in this case, when the re-partnering enables the recipient spouse to use other assets to generate income.
The appeal was dismissed.
Brennan J. Clarkson has helped clients with family law and estate law cases since 2008. He practices in Port Moody, British Columbia at Clarkson Law Corporation.
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