Spousal Support: Oh Lord, When Will It End?

 In 1999 K.D. (we'll call her Kate) and D.N (let's call him Dan) were married. The one thing we know they agreed upon was that they wanted to have children. So much so that when it became apparent Kate could not have children (her eggs were not viable), without medical intervention, she went off to the United States to pursue fertility treatments.

After very expensive, difficult and painful treatment, the couple was rewarded with a daughter in May, 2005.

Although Dan was initially against a second round of fertility treatments for another child, he finally relented and Kate underwent another round of treatment. She became pregnant with twins and her pregnancy was fragile, requiring bed rest and limited activity. She delivered one of the twins, a daughter, in April, 2007. The other twin did not survive. By then the marriage had deteriorated and the parties separated near the end of 2007.

The matter ended up in court, as all too often these family matters do. The Judge hearing the case described the issue of custody as "very emotionally driven in large part due to the infertility issues and the extraordinary efforts [the parties] made to have children".

The Judge who heard the case ordered joint custody and guardianship of the girls to Kate and Dan, with the children being primarily resident with their mother. Dan was given specific generous access.

Dan was also ordered to pay both child support and spousal support to Kate. It was spousal support that became the biggest issue in this case.

The order itself was quite simple. Dan would pay spousal support to Kate at the rate of $2,800 a month, for one year ending in August 2010. That would give Kate enough time to get back on her feet and find a job. After that one year, spousal support would drop to $1,900 a month for one more year; and after that, the court would look to see if Kate qualified for any more spousal support or if Dan would be let off the hook.

What happened next after Dan and Kate separated surprised everyone. Kate became pregnant. This time - no reported expense, no painful fertility treatment ... and no Dan; and wouldn't you know it - it's a boy!

Given Kate's earlier medical history the court found that the pregnancy was a surprise to all. One Judge described the pregnancy "...akin to a miracle". The father of the miracle was not a part of Kate's life. He was ordered to pay some child support and that was it.

After her third child was born, Kate came back to court. She told the court that her third pregnancy changed everything - that there had been a material change in her circumstances since the original order had been made and she needed the increased spousal support to continue for another 12 months.

Material Change in Circumstances are "magic" words in family law. In order for a judge to change an already existing order (spousal support drops to $1,900 after 12 months), the party wanting the change must convince a judge that there has been a material change in his or her circumstances since the original order was made. In this case, the material change was, of course, the unplanned pregnancy and subsequent birth and inability of Kate to get back to work as planned.

To prove the material change, Kate told the court that as a result of all three pregnancies she now had unresolved health issues requiring esophageal/hernia surgery which made it impossible for her to look for work while she was recovering from the third difficult pregnancy.

In addition, Kate argued, she was the primary caregiver of three very young children (five, three and 5 months old) and she was breast feeding her 5 month old son. Kate told the court it would be in the children's best interests if she postponed working for another year and stayed at home with the children.

Dan, she argued, should continue paying $2,800 a month spousal support for another year, rather than the support dropping to $1,900 as ordered in the earlier decision.

Wait a minute. Who should pay? Dan? What did he have to do with Kate's issues? Who caused the pregnancy in the first place?

Dan forcefully argued that any award for spousal support must be inextricably linked to the marriage, and its breakdown. Kate's pregnancy had absolutely nothing to do with Dan or their marriage. Why should he have to bear the burden of her "miracle"?

And besides, when Kate ended up pregnant the last time that was her doing. She could have terminated the pregnancy and avoided the consequences of her own actions. Why should an innocent third party (Dan), bail her out?

In essence, Dan argued, if there was a material change in Kate's economic circumstances it was caused by Kate's own actions and that was her problem to sort out.

So, who wins?

The British Columbia Court of Appeal had its own take on the case. First off, it decided that as a result of the pregnancy and birth of the miracle child, Kate would not be able to go back to work as originally planned.

The court also found that as a result of Kate having to postpone work for a year, she would suffer significant economic loss which amounted to a material change in her circumstances.

"Similarly", the court said, while Kate's "... unanticipated pregnancy and associated illness were not directly related to the marriage or its breakdown, they occurred at a critical juncture in her attempt to deal with the economic consequences of those events, and prevented her from taking steps anticipated by the earlier order to overcome that hardship and achieve self-sufficiency."

In short, the court said that the purpose of spousal support in this case was to provide enough money to Kate until she was able to support herself. Because of the third pregnancy that goal of self-sufficiency was put off for 12 months, and Dan would have to pay the $2,800 for a further year instead of $1,900 so that Kate could reach that goal.

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