Focus On

Family Law - Maintenance and support - Spousal support - Considerations - Compensatory support - Effect of parties’ subsequent relationships - Economic disadvantage of marriage - Variation or termination of obligation

Thursday, September 01, 2016 @ 8:00 PM  


Appeal by the husband from a decision dismissing his application for termination of spousal support. The parties lived together from 1973 to 1976, married in 1976, separated in 1996, and divorced in 1997. Their three adult children were living independently. The wife took time out of the workforce to have the parties’ children, and returned to work on a part-time basis to continue assuming care of the children. In 1997, the wife left the workforce due to symptoms associated with Chronic Fatigue Syndrome. The husband obtained a Master’s degree in Business Administration and his Chartered Accountant designation during the course of the marriage. In 2011, 2012 and 2013, the husband earned $660,723, $548,889 and $614,658 respectively. The parties entered into a settlement in 1997 and included an agreed amount of spousal support in the amount of $2,350 per month. The terms of the settlement provided for a review in the event that the wife’s share of her father’s estate exceeded $200,000. The review was ultimately heard and it was ordered that the spousal support remain at $2,350. The wife was cohabitating with a new partner at his home. The wife’s income without spousal support was $42,300. The husband retired in 2014 and his total income was $135,000 per year. The husband had approximately $1,500,000 in assets, and the wife had approximately $1,350,000, not including any future interest in her father’s estate. The chambers judge held that the spousal support award was compensatory and entitlement was ongoing. He essentially found that compensation had not been achieved because of the low amount of spousal support the wife received over the years in comparison to what the Spousal Support Advisory Guidelines recommended. The husband submitted that the chambers judge failed to first consider the issue of entitlement to spousal support before considering quantum.

HELD: Appeal dismissed. The husband’s retirement was a material change in circumstances warranting an assessment of whether a variance was warranted. The judge committed no error in principle, did not significantly misapprehend the evidence, and the award was not clearly wrong. It could not be said that the chambers judge erred in concluding that the wife had not been adequately compensated for her loss by the receipt of spousal support for 18 years in the low sum she received. The wife was significantly disadvantaged. She gave up her opportunity for further education, full-time work, employment opportunities and took a reduced salary and pension. In contrast, the husband enjoyed significant advantage to obtain very high income employment. The chambers judge was correct to conclude that the wife’s re-partnering was not relevant on a variation of spousal support when the award was based on compensatory principles. The extent to which economic benefits conferred and detriments received from marriage or its breakdown had been fully compensated by spousal support to date was the dominant consideration. Therefore, the new partner’s means were generally not relevant in variance applications of compensatory orders. The amount of spousal support was minimal given the income the husband earned. This was not a case where re-partnering would redress the basis for compensatory support.