Ontario Court Addresses Interim Spousal Support Orders and Exceptional Circumstances

Mark Feigenbaum

The Ontario Superior Court recently reviewed the factors to consider when considering an order for interim spousal support, and what exceptional circumstances justify making an order for support outside the Spousal Support Advisory Guidelines.

What Happened?

The wife brought a motion seeking interim spousal support in the amount of $2,500 per month, as well as a lump sum of $15,000 for future costs. At the time of the motion, the wife’s income was $29,995.56.

The husband requested that his wife’s motion be dismissed or, in the alternative, that interim spousal support should be ordered in accordance with the marriage contract for an amount of $300 per month. At the time of the motion, the husband’s estimated income was $62,094.96.

The couple began living together in June 2006 and married on June 7, 2008. The couple separated on September 5, 2011. The entire duration of their relationship was just over six years.

The Positions of the Parties

The wife argued that her physical, emotional, psychological, and psychiatric illnesses, which included depression, eating disorders, sleeping disorders, and anxiety, have resulted in her inability to work.  She also argued that some of these ailments were, at least in part, due to the breakdown of the couple’s relationship, including a diagnosis of PTSD.

The wife also submitted that she was no longer on her husband’s medical insurance and receiving interim spousal support would cover the cost of her medications. Her income is insufficient to cover her medical needs.

It was the husband’s position that abuse was at the hands of both parties, not just his. He also argued that his wife’s emotional, psychological, and psychiatric problems pre-dated their relationship. This was substantiated by his wife’s medical notes.

He also argued that his wife’s claims that her termination from his health care plan has led to her inability to afford medication is unsubstantiated. He noted that his wife has not submitted any receipts or claims for reimbursement to his insurer since February 2015.

However, the Court noted that since the husband’s claims regarding his wife’s receipts for medication was made, the wife has brought forth proof of medical claims and reimbursement for 2016, 2015, and 2014.

Finally, the husband contended that his wife has not suffered any financial disadvantage as a result of the breakdown of their relationship, but rather has received financial advantages. The husband noted that she received one-half of the net sale proceeds from the matrimonial home, despite that the husband purchased and renovated the home, a car that he had purchased for her, a $30,000 contribution that he made to her RRSP before marriage, and his financial support of her from 2007 to 2009, including her tuition for the 2008 – 2009 academic year.

The husband had also re-partnered with a new spouse, of which he had a child. This further limited the means available for interim spousal support.

The Law

Section 15.2 of the Divorce Act addresses interim spousal support.

The section states that when considering an order of interim spousal support, the court will consider the following factors:

• The length of time the spouses cohabited;
• The functions performed by each spouse during cohabitation;
• Any order, agreement, or arrangement relating to either spouse;

The section also states that when making an order for spousal support, the order must meet the following criteria:

• Recognize any economic advantages or disadvantages to the spouses that stem from the marriage or the breakdown of the marriage;
• Divide any financial consequences amongst the spouses that stem from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
• Alleviate any financial hardship of the spouses stemming from the breakdown of the marriage; and
• In so far as possible, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Section 33 of the Family Law Act also applies in this case.

The section outlines the purpose for support and how to determine the amount. According to this section, an order for support should meet the following:

• Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
• Share the financial burden of child support fairly;
• Make fair provisions to assist the spouse to become able to contribute to his/her support; and
• Alleviate financial hardship, if this has not been done already under Parts I (Family Property) and II (Matrimonial Home).

When determining the amount of spousal support, Section 33(9) sets out the following guidelines:

• The dependant’s and respondent’s current assets and means;
• The assets and means that both are likely to have in the future;
• The dependant’s capacity to contribute to his/her own support;
• The respondent’s capacity to provide support;
• Both parties’ age and physical and mental health;
• The dependant’s needs when considering the accustomed standard of living while the parties resided together;
• The measures available for the dependant to become able to provide for his/her own support and the length of time and cost involved to enable the dependant to take those measures;
• Any legal obligation of either party to provide support to another person;
• The desirability of either party to remain at home and care for a child;
• A contribution by the dependant to the realization of the respondent’s career potential; and
• If the dependant is a spouse,
  • The length of time the parties cohabited;
  • The effect on the spouse’s earning capacity during cohabitation;
  • Whether the spouse has undertaken the care of a child who is eighteen years or older and unable to withdraw from the charge of his/her parents due to illness, disability, or other cause;
  • Whether the spouse has undertaken to help a child who is eighteen years of age or older and is unable to withdraw from the charge of his/her parents in the continuation of their education;
  • Any housekeeping, child care, or domestic services performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing earnings to the family’s support;
  • The effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
  • Any other legal of the dependant to support, other than out of public money.

Finally, the Spousal Support Advisory Guidelines, while not binding, are an important tool that help guide courts in calculating a sensible range of support. Traditionally, the Guidelines are given significant weight. The purpose of the Guidelines is to establish some predictability when calculating spousal support, having regard to the discretionary language set out in Section 15.2(1) of the Divorce Act.

The Decision

The Court considered the relevant provisions in the Divorce Act, the Family Law Act, the Spousal Support Advisory Guidelines and the relevant case law.

The Court first noted that at this interim stage it was not necessary to determine entitlement or conduct a complete inquiry into whether there was a financial advantage or disadvantage as a result of the relationship. That investigation would be saved for the Trial Judge.

The Court also noted that no single provision or objective in the Divorce Act or Family Law Act is more important than another.

In making its first determination, the Court found merit in the wife’s current economic need, and that the husband had the means to pay financial support. The Court declined to make a conclusion as to whether the wife suffered from PTSD as a result of the marriage, and whether that would create compensatory entitlement. The Court argued that that would be better left for the Trial Judge to investigate.

In calculating the quantum of interim spousal support, the Court considered the income of both parties, the marriage contract signed by both parties, as well as the Guidelines.

The Court ultimately held that due to the wife’s multiple ailments, this was an exceptional case that, on an interim basis, the wife is entitled to spousal support greater than if the Spousal Support Advisory Guidelines were applied.

In reaching this decision, the Court considered:

• The wife’s age;
• The wife’s current income through disability and CPP disability pension;
• Length of the parties’ relationship;
• The wife’s financial statements, her budget, and current circumstances (including her medication costs, desire to move out of her father’s home, etc.);
• The husband’s ability to pay;
• The wife’s accustomed standard of living during the relationship; and
• The wife’s current ability to become economically self-sufficient.

Upon consideration of the above-mentioned factors, the Court concluded that the wife was entitled to an order of interim spousal support in the amount of $750 each month.

Whether you are married or in a common law relationship, spousal support issues following the breakdown of a relationship can become complicated and contentious. If you are considering a separation, or have already begun the process, and have questions about how to protect yourself, you should consult with a knowledgeable family lawyer before taking any initial or further steps. Mark Feigenbaum is a highly skilled Toronto family lawyer. He brings together many years of litigation, corporate law, estate law, tax law, and accounting experience and applies this multi-faceted experience to family law disputes. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.