One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.
Boekhoff v. Boekhoff, 2016 BCCA 33
AREAS OF LAW: Family law; Spousal support; Arrears; Material change in circumstances
~Agreeing to accept a lower amount of spousal support does not create a binding contract where no consideration is given, but may constitute waiver of the right to a higher amount.~
BACKGROUND: The Appellant, Jayne Boekhoff, and the Respondent, Gerald Boekhoff, were married for over 20 years. Throughout this time the Appellant remained primarily at home to care for the parties’ two children. Both children have health and developmental difficulties. The parties divorced in 1997, and at trial the Respondent was ordered to pay $800 per month in spousal support on an indefinite basis. In late 2000 or early 2001, the parties discussed the ongoing spousal support payments. The Respondent said that the parties agreed at that time to reduce payments to $200 per month, mainly with the goal of providing financial assistance for their son, L. The Appellant said that she was pressured into agreeing to the reduction by other people present at the meeting. Between 2001 and 2008, the Respondent paid the Appellant $200 per month and the Appellant provided him with receipts for the full $800. She took no issue with the amount of the support payments for almost 10 years. In 2010 counsel for the Appellant sent the Respondent a letter requesting the reinstatement of the full $800 and arrears alleged to have accrued since the 2001 meeting. Counsel for the Respondent answered that the parties had agreed to reduce spousal support payments in 2001. In March 2014 the Appellant commenced an application seeking payment of $99,000 in arrears and reinstatement of the monthly payments, in an amount considered appropriate by the court. The Respondent opposed the application and sought to vary the 1997 order by either terminating or reducing support. At summary trial, the judge concluded that the parties had come to an agreement in 2001 to reduce the spousal support. Implicit in this conclusion was a finding that the agreement was not the result of duress. The summary trial judge found the facts justified an order cancelling arrears, and found that the Appellant had not suffered financially as a result of the reduction. He held that she was estopped from alleging an entitlement to the arrears, having agreed to the reduction. After reviewing the parties’ current circumstances, the summary trial judge reinstated prospective spousal support to $800 on an indeterminate basis, noting that the parties’ incomes would be roughly equal under such an award. He considered this to be fair given the duration of the marriage and the economic disadvantage the Appellant suffered after its dissolution.
APPELLATE DECISION: The appeal was dismissed and the cross-appeal allowed in part. The Appellant argued that the trial judge erred in concluding that the parties had reached an agreement in 2001. She stated that she felt bullied by the Respondent and that she was living with an abusive partner at the time of the meeting, a partner who attended the meeting with her and stated that she would take the $200. The summary trial judge accepted the Appellant’s evidence to the extent that the partner was present and that it was he who said she did not need the additional support. However, there was ample evidence for the summary trial judge to conclude that the Appellant agreed to the reduced amount, including the fact that the Appellant took no steps after her relationship with the abusive partner ended to enforce the terms of the original support order or seek arrears. The Court of Appeal noted that the summary trial judge did not address the issue of whether the 2001 agreement was legally binding. The Court found that it was not, as no consideration flowed from the Respondent to the Appellant, but found that the Appellant waived her right to receive $800 payments between January 2001 and March 2014. Although the 2010 letter could have amounted to withdrawal of waiver, the fact that the Appellant took no further steps to collect arrears or increased payments until 2014 signified that the letter did not have the effect of withdrawing the waiver. While the summary trial judge erred in principle when he failed to apply s. 17 of the Divorce Act in considering variation of the spousal support order, it was clear that there had been a material change in circumstances and the Court agreed with the judge’s conclusion that arrears should be cancelled. The Respondent cross-appealed the reinstatement of the $800 per month support. The Court considered that the summary trial judge did not refer to statutory authority for making this order, nor did he explicitly consider the extent of the material change in circumstances. He did not directly address the two separate enquiries of entitlement and quantum, and he seemed to work from the proposition that the parties were entitled to approximately equal income. This was in error, as was the summary trial judge’s failure to refer to the Spousal Support Advisory Guidelines. The Court applied the Guidelines and, considering the parties’ incomes, found that monthly spousal support of $424 per month retroactive to March 2014 was appropriate.
The appeal in this case raised the issue of the cancellation of spousal support arrears. From a practical point of view, this case tells us that if you wish to deviate from what original Court order, you should always get the new agreement in writing. This would have benefited Mr. Boekhoff in this case. Notwithstanding the lack of proof of a written or oral agreement, the Court of Appeal focused on the actions of the parties to reach, in our opinion, a just result. The Court of Appeal illustrated in this decision that it will not countenance inaction from the recipient party who many years later seeks to claim arrears of support. This decision demonstrates, that in certain cases, failing to take steps expeditiously to enforce payment of support could prove fatal to the recipient party when seeking arrears.
With respect to the cross appeal, the Court of Appeal had to make a determination of ongoing spousal support. The Court of Appeal in this decision reiterated the applicability and usefulness of the Spousal Support Advisory Guidelines (the “SSAG”) in variation applications. Importantly, the Court of Appeal found that this case was appropriate for the application of the SSAG, even when the original order preceded the introduction of the SSAG.
Also of note are the comments made by the Court of Appeal with respect to the summary trial judge’s error when, in his analysis of entitlement and quantum for spousal support, began from the proposition that the parties’ incomes should be equalized. The Court of Appeal rightly clarified that the entitlement of having approximately equal incomes is not the primary criteria in variation applications.
The troubling aspect of this decision was that no termination date was offered by either the court below or the Court of Appeal. In this case, the spousal support paid by Mr. Boekhoff exceeded the length of time the parties were together. Moreover, it was established that the recipient spouse had improved her financial circumstances since their divorce. The Court of Appeal, however, made an order for ongoing spousal support on an indefinite basis and on the high range as suggested by the SSAG. The Court of Appeal justified this decision by indicating that the order was on a compensatory basis. This case may be confined to its facts, but if not, on a precedential basis is worrisome for the payor, whom, after paying spousal support for a longer period of time than the length of his relationship with the recipient, continues to face the uncertainty of an “indefinite” spousal support obligation.