By Jeannette Aucoin and Alec Kobetitch

In family law, calculating income for child and spousal support in a separation or divorce proceeding involves a detailed examination of both parties’ financial situations. If you receive financial support through benefits for a disability, should this source of income be used in determining your financial picture?

This question was recently addressed by the BC Court of Appeal in Boonstra v. Boonstra, 2024 BCCA 153. The panel of three justices upheld the lower court’s decision in a spousal support review, finding that the judge’s consideration and inclusion of the appellant’s Veteran Affairs Canada (VAC) Benefit in determining his financial position.

This new judgment signals that benefits, while not considered explicitly as income in the spousal support calculation in this case, can have influence over spousal support awards. Courts can consider such benefits when using the Spousal Support Advisory Guidelines to assess a party’s larger financial picture, in this case determining the high-range formula to be appropriate in light of the VAC Benefits.

Case Background

The appellant and respondent had been married for 23 years before divorcing in 2016 after a mediated settlement and agreed upon spousal support terms. In 2020, the respondent initiated a spousal support review, seeking an increase from $800 to $1,763 per month. The respondent argued she was unable to keep up with the mounting costs to support herself, and that with the appellant’s new financial position due to the VAC Benefits she argued were income, she should receive a higher award.

In contrast, the appellant sought to terminate his obligation to pay spousal support, citing financial hardship and his mental distress. The appellant had been medically discharged from the RCMP following a cycling accident. Following the accident, the respondent applied to VAC, and began receiving the VAC Benefit in 2019. He relies on the VAC Benefits and the RCMP Pension (which the respondent received a part of as a result of the divorce) as means to support himself. The appellant argued that including the Pension would result in “double recovery”, and that his VAC Benefit should not be included as income in calculating his financial position.

The judge declined to terminate the spousal support order, and ordered spousal support at the High Range of the SSAGs. The reviewing judge declined to include the VAC Benefits specifically as income, but referred to it when determining the appellant’s overall means and circumstances, concluding it called for the high-range formula to be used in the circumstances.

Court of Appeal’s Assessment of the Use of the Benefits

The Court of Appeal dismissed the appeal and the cross-appeal, finding that the reviewing judge’s use of the VAC Benefits to look at the appellant’s overall means and circumstances was appropriate. Citing a string of cases, the Court found that “means” in the context of spousal support does include other sources from which a person receives gains or benefits. The reviewing judge was free to consider the VAC Benefits in the larger picture and was not limited to using it in the income calculation. Using the high range formula from the Spousal Support Advisory Guidelines was appropriate to ensure fairness between the parties.

Takeaways

This decision indicates that, while the Court did not include the VAC Benefit as part of the appellant’s income in this case, it does have an impact on the calculation of a payor’s means, circumstances, and ability to pay support.