AREAS OF LAW: Family law; Spousal support; Non-compensatory support; Division of pensionKeen v Christian-Keen, 2015 ABCA 314 (CanLII)
Non-compensatory spousal support is not determined by the spouses’ contributions to the marriage, but rather by post-marital need.~
BACKGROUND: The Appellant, Christopher Keen, and the Respondent, Jennifer Christian-Keen, were married for 19 years. The parties had three children, and the Respondent acted as a full time mother and homemaker until the youngest child was in school. She did not complete high school and had a limited employment history. She was also injured in two car accidents in 1990 and 1994, in which she suffered serious injuries. It was agreed in the divorce proceedings that she was capable of earning approximately $28,000 per year. The Appellant worked throughout the marriage and his income for 2014 was estimated to be $129,000. The parties separated in 2008 and the Respondent began living with her common law partner in 2009. Her partner paid many of her living expenses. The Appellant also entered a new relationship, and has a son with his new partner. Based on these facts, the trial judge concluded that the Respondent was entitled to spousal support and set a lump sum payment for retroactive support at $60,000, with $20,000 to be paid immediately and the balance to be paid by annual instalments of $5,000. She also ordered ongoing spousal support of $1,800 per month for a period of 42 months, at which time spousal support would be reviewed. The Appellant contested the order, arguing that the trial judge erred in awarding retroactive and ongoing compensatory spousal support. He also argued that his pension should have been divided as at February 24, 2014, the date the matter was scheduled to go to trial. There were no judges available that day, and the matter was adjourned to November 21, 2014, with the pension being divided as at that date.
APPELLATE DECISION: The appeal was dismissed. The Court of Appeal noted the high degree of deference afforded to discretionary decisions regarding spousal support. A trial judge may also award different categories of spousal support, including compensatory and non-compensatory support. Compensatory support is meant to recognize the non-monetary contributions the recipient spouse has made in the marriage, and to alleviate the economic loss of a spouse disadvantaged by his or her role in the marriage. A subsequent re-partnering does not necessarily disentitle the spouse to that support, because the disadvantages from the marriage are not overcome until the disadvantaged spouse returns to work and progresses, or upgrades his or her training. Non-compensatory support is intended to alleviate economic hardship arising from the breakdown of the marriage. It is not determined based on what the spouses contributed to the marriage, but rather on post-marital need. The Court of Appeal found that the trial judge in this case appreciated and applied these principles and intended both the retroactive and ongoing support to be compensatory in nature. The trial judge stated that if the Respondent wished to pursue a claim for non-compensatory support she would have to provide additional medical information. The trial judge was alive to the Appellant having had almost sole financial responsibility for the care of the children following the separation, and considered this when determining the quantum of spousal support. The Court of Appeal held that while it was unfortunate the trial date was delayed by several months due to a lack of judicial resources, this was not sufficient ground on which to deviate from the rule that assets are valued as at the time of the trial.