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MAINTENANCE AND SUPPORT - Compensatory support - Contribution in property or services

Thursday, February 11, 2021 @ 6:12 AM  


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Appeal by the husband from a spousal support order. The parties married in 1990 and separated in 2014. As of the trial date, the parties were 56 years of age and had three adult children. The wife was a full-time optometrist who left practice to support the husband’s flourishing business and run the household. The couple accumulated substantial assets and enjoyed an exceptional income. The trial judge ordered the husband to pay equalization of $2.7 million plus monthly spousal support of $125,000 and monthly child support of $14,233 during the periods the youngest child resided with the wife while at home from university. The spousal support award was predicated on the length of the marriage, the parties’ relative capital positions, the critical role the wife played in contributing to the financial success of the husband’s business in its early years and the compensable loss related to the wife’s decision to stop working outside of the home to support the business and the household. The husband’s annual income was between $4.5 and $6 million for support purposes. He appealed the spousal support award.

HELD: Appeal dismissed. The trial judge did not err in the assessment of the wife’s needs and means given the compensatory nature of her entitlement to support. The question of the wife’s entitlement was appropriately determined with reference to the parties’ standard of living during the marriage, the potential hardship faced by the wife and her contribution to the parties’ security during the early years of the marriage. In addition, a firm basis existed for a compensatory award given the wife’s role as primary caregiver to three children. The judge was entitled to find the wife could buy a house and cottage commensurate with her prior standard of living without having to allocate her capital for investment purposes. The trial judge did not err in calculating the husband’s income by failing to apply or incorrectly applying the Halliwell decision and the Guidelines in respect of high-income individuals. The judge fully understood that the ability of the wife’s capital base to meet her future needs could not be examined in isolation from the cost of maintaining non-income producing residences, or from the husband’s respective capital position. No error arose from ordering indefinite support, as nothing in the order precluded the husband from review based on a material change.

Plese v. Herjavec, [2020] O.J. No. 5491, Ontario Court of Appeal, G.R. Strathy C.J.O., D.M. Brown and G. Huscroft JJ.A., December 16, 2020. Digest No. TLD-February82021008