A court of competent jurisdiction may . . . make an order requiring a spouse to . . . pay, such lump sum or periodic sums . . . as the court thinks reasonable for the support of the other spouse. –Section 15.2 (1), The Divorce Act
Earlier this year, the Ontario Court of Appeal released an interesting decision dealing with the issue of spousal support. In this case, the court considered what is meant by a spouse becoming self-sufficient following the breakdown of a marriage.
The Facts
The Fishers, who had no children, were married for 19 years. The wife worked in fine arts and earned approximately $30,000 a year. The husband had been a teacher for 11 years, before accepting a job with the Ontario Secondary School Teachers’ Federation. His new job eventually resulted in a significant salary increase. By the time the couple separated in 2004, the husband was earning $120,000, plus car allowance and benefits.
Following the separation, the husband’s girlfriend and her two young children moved in with him. The wife, who had not seen the breakup coming, became clinically depressed and ended up taking an 11-month disability leave from her job. At the time of separation, the wife was 41 and the husband was 42. The wife sued for spousal support.
Spousal Support: Some Background
When a marriage fails there are many legalities which must be addressed. One of those is the issue of whether spousal support must be paid by one spouse for the benefit of the other. Pursuant to the Divorce Act, four objectives are sought when deciding spousal support. Those objectives are to:
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Pursuant to the Divorce Act, spousal support will be paid based on the condition, means, needs and other circumstances of each spouse, including:
a) the length of time the spouses cohabited;
b) the functions performed by each spouse during cohabitation; and
c) any order, agreement or arrangement relating to support of either spouse.
In 2005, in an effort to bring more certainty and predictability to the determination of spousal support, a team of legal academics, practitioners and judges released the Spousal Support Advisory Guidelines. These Guidelines, which have no legal authority, are meant to be a tool to aid in determining the range of amounts and a guide to the parameters involved in assessing the duration of a spousal support award once entitlement has been established.
The Award
The trial judge in the Fishers’ case did award the wife spousal support. The wife however, took issue with the amount and the timing of the award and appealed to the Ontario Court of Appeal.
The appellate court allowed the appeal and awarded the wife $3,000 a month commencing on October 1, 2004, the date the wife brought her initial application, and continuing to March 1, 2008. The amount of support was to then be reduced to $1,500 a month and would terminate after the September 1, 2011 payment.
In reaching its decision, the court reviewed the objectives of a spousal support award. They focused in particular on the economic disadvantage visited upon the wife from the marriage breakdown as well as her ability to become self-sufficient.
The court noted that the couple had formed a relationship of financial interdependence, which began when the wife worked full-time while the husband finished his schooling. And later during the marriage the husband supported the wife’s decision to go back to university. In addition, the couple had settled into a comfortable middle-class lifestyle over the years.
When the marriage ended, it was the wife’s lifestyle and financial stability that were most negatively affected. Suddenly her comfortable lifestyle was gone along with the husband’s salary increase that she had had every expectation that she would share in. Her finances were also affected, at least in the short term, by the clinical depression she suffered.
With respect to the issue of self-sufficiency, the court drew a distinction between one’s ability to simply meet one’s basic needs and the ability to support a reasonable standard of living. The court stated, “Self-sufficiency, with its connotation of economic independence, is a relative concept.”
The court went on to find that self-sufficiency, at least in the context of divorce, is more than a spouse being able to meet his or her basic expenses. Instead, the court concluded that self-sufficiency related to that spouse’s ability to support a reasonable standard of living. Further, the meaning of self-sufficiency in a particular case is “to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.”
To make that determination, the Court of Appeal set out a list of criteria that should be taken into account. These include:
o The parties’ present and potential incomes.
o The parties’ standard of living during marriage.
o The likely post-separation circumstances (including the impact of equalization of their property).
o The duration of the parties’ cohabitation.
While the court recognized that the wife’s dependency on the marital standard of living was different than if there had been children, it nevertheless rejected the husband’s contention that the wife should be considered self-sufficient because she was earning $30,000 a year. Rather, the court concluded that her ability to become self-sufficient, even if her income increased, was not practicable in a reasonable time. Therefore, to help her transition to the new reality, the court felt that spousal support would be required for a seven-year period.
The court indicated that this seven-year award recognized the wife’s “economic disadvantage arising from the marriage and its breakdown, while also encouraging the appellant to complete her transition to self-sufficiency, whether by reason of earning a higher income or, more likely, by adapting her lifestyle to her then income.”
Another important factor that was addressed by the court was the husband’s contention that his ability to pay any significant spousal support was compromised by his responsibility for his new partner and her children. However, the court rejected this argument since the husband had voluntarily assumed this responsibility. Further, he supported his new partner’s decision to be a stay-at-home mother despite her having a viable profession. The court also recognized that in this particular situation the husband was under no legal obligation to support this new family and that in any event there was no evidence that his obligation to his first family would impoverish this second family.
Bottom Line
The law has come to recognize that the longer a marriage lasts, the more entwined the lives of the spouses become, particularly in respect of finances and standard of living. Therefore, it is wise to assume, that in the event of a separation, spousal support will be an issue to be addressed, preferably before there is a second family in the picture.
If you require assistance with a matrimonial matter, please contact our firm. We would be pleased to assist you.
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