As retirement approaches, one of the most common refrains from elderly clients to their family law lawyers, is “when does spousal support end?”
Having finally completed their child support obligations, with the adult children now independent, the longing for a complete divestiture of financial entanglements from a marriage long past, is now on the agenda.
THE CHAMBERS DECISION
Huber v. Atwal 2026 BCCA 35 is a classic retirement case, illustrating how different judges analyze the same facts, but come to contrasting conclusions.
After a 26-year marriage the parties separated in 2014, resolving their differences through mediation and a consent order in 2017, which provided that upon retirement the husband’s spousal support obligation could be reviewed. A review was also permitted if his gross revenue from his medical practice was reduced by 10 percent or more in any fiscal year.
In the Fall of 2022, Christopher Huber, an anesthesiologist, had income of $454,000 annually, while his former wife, Kedy Atwal, a critical care nurse, earned $142,844.
However, life had changed for Dr. Huber. He received a generous family inheritance; retied from his full-time practice in Richmond; and purchased and moved to a winery in Penticton, and began working part-time on call at the Penticton hospital.
By the end of fiscal year 2023, his income was greatly reduced and in 2024 he earned $189,488 between January and September. He brought an application to terminate or reduce his spousal support in accordance with the terms of the consent order, not an unexpected event for a now 71-year-old physician.
Ms. Atwal remained working full time at the age of 67 and the chambers judge noted that she relied on her spousal support to maintain the standard of living that she enjoyed throughout their long marriage, a generous lifestyle with international travel every year. He also made a finding that Dr. Huber’s net worth was a million dollars greater than Ms. Atwal.
Relying on Morck v. Morck 2013 BCCA 186, the lower court affirmed that a review of spousal support was a “de novo” hearing, treated as an initial application for support under section 15.2 of the Divorce Act, where a court was obliged to consider the length of time the spouses cohabited, the functions performed by each spouse during their cohabitation, and any agreement or order regarding support. Other important factors included recognizing economic advantages and disadvantages of the spouses, relieving economic hardship arising from the marriage breakdown, and promoting the economic self-sufficiency of each spouse.
The evidence showed that Ms. Atwal worked part-time during the marriage, providing her with no benefits or pension. She maintained the household and provided primary care for their two children, leading to a finding that her support was both compensatory and needs-based. At the time of Dr. Huber’s application, she would have received 11 years of support and was working full time.
Dr. Huber submitted that the principles in Hague v. Hague 2022 BCCA 325, supported his application for a termination or reduction of support, where the court stated that absent evidence of a diminution of work intended to thwart a legal obligation to pay support and given his age of 71 years, a more than acceptable age for retirement, his application was appropriate.
The chambers judge disagreed, finding that Dr. Huber’s decision to reduce his income and hours was driven by his inheritance, re-partnering, relocation to a winery and an overall desire to reduce his hours of work. He imputed income of $475,000 to him. He also held that Ms. Atwal’s current income was impacted by years away from the full-time work force and that to reduce her spousal support would not be an equitable sharing of the economic consequences of marriage. She was awarded $10,830 a month in spousal support.
On appeal, the three-member panel confirmed that the appellant retired from full-time practice in the fall of 2022 and that in fiscal year 2023, with a reduction of more than 10 percent of his income, a review was triggered.
The court noted that the finding below that Dr. Huber’s net worth was $1 million dollars more than Ms. Atwal’s was erroneous, as the difference was closer to $250,000 in the appellant’s favour.
Counsel for Dr. Huber and the court agreed that this misapprehension alone was not overriding. What the appeal court focused on was the chambers judge’s observation that Dr. Huber’s retirement was speculative, as the evidence was that while he had retired from full-time practice, he maintained limited on call hours in Penticton.
The appeal court found that there was no reasonable basis to impute income of $475,000 to Dr. Huber, as the test for imputing income for underemployment is reasonableness, having regard to the payor’s capacity to earn in light of age, education, health, work history, and work availability.
While the chambers judge did not say that Dr. Huber was intentionally underemployed, it was apparent that underemployment was a key aspect of his imputation of income. The appeal court stated that where a payor spouse has had a long and productive career and is over 70 years old, the fact that they are capable of working full time does not mean that it is unreasonable to work less. They determined that the chambers judge erred by failing to address the following evidence:
- Dr. Huber moved to Penticton at the age of 68 in anticipation of his pending retirement;
- Due to his age, certain work was not offered to him, as it is frowned upon in the profession to take on certain types of work at the end of their careers;
- His ability to work long hours was waning;
- His on-call work was providing fewer opportunities and required travel to the north and Quesnel;
- The chambers judge did not consider the evidence of the doctor responsible for scheduling anesthesiologists in Penticton, who confirmed that after October 2024 no further shifts would be offered to Dr. Huber.
The appeal court considered the evidence of Dr. Huber’s earnings in 2024 and determined that his income was $310,000, allowed the appeal and ordered that he would pay spousal support of $5,224 a month, effective January 1, 2025, resulting in an overpayment of support, with liberty to apply to the parties if they could not agree on the appropriate reimbursement to Dr. Huber.
This case confirms that retirement or lifestyle changes do not automatically justify reducing or terminating spousal support; court’s must assess the payor’s earning capacity in light of age, health, and work history, while ensuring the recipient’s economic position reflects the consequences of marriage and its breakdown.
Lawdiva aka Georgialee Lang