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MAINTENANCE AND SUPPORT - Ability to pay - Principle of equality of standard of living

Thursday, March 11, 2021 @ 6:05 AM  


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Appeal by the husband from the quantum of spousal support awarded to the wife. Cross-appeal by the wife for a larger share of the husband’s retention bonus and dividends if the quantum of spousal support was reduced. The parties were married for 22 years prior to their separation in 2014. The wife had not worked outside the home for most of the marriage. The husband’s average income in the five years prior to separation was $338,356. The husband moved to the United Arab Emirates for employment in 2015. His average income in the four years post-separation was $790,144. The trial judge ordered the husband to pay monthly spousal support of $42,594, reduced to $35,047 once the terms of the property order were satisfied. The husband’s retroactive support from 2014 to 2019 was fixed at $1,002,730. The wife had not travelled extensively during the marriage except for joining the husband on employment-related trips and using travel points earned by the husband. The trial judge accepted the wife’s budget, which outlined net monthly expenses of $15,900 including $3,000 per month for travel. The support order included $7,374 per month to be set aside in savings to prepare for retirement. The husband was prepared to pay monthly support of $24,000.

HELD: Appeal allowed; cross-appeal dismissed. The trial judge erred by determining the quantum of support based on the husband’s post-separation income. The fact the wife was entitled to compensatory spousal support did not lead to the conclusion that spousal support was to be based exclusively on the husband’s post-separation income. The focus was on ordering support sufficient to permit the wife to maintain the lifestyle she enjoyed prior to the separation. The husband’s increase in income post-separation was a relevant consideration to the extent that it put him in a position of being able to augment the support he was able to provide to the wife. The evidence did not support the conclusion that an annual amount of $36,000 for travel was warranted. The husband’s concession of $24,000 per month in support was generous, reasonable and appropriate. It provided the wife with an income that accommodated her expenses at an appropriate level and provided sufficient funds to permit the wife to maintain a lifestyle similar to what she enjoyed prior to the separation and permitted flexibility in the use of the funds to allow for savings to be set aside for the future. The husband’s retroactive support was adjusted to $389,128. The trial judge erred in concluding RRSPs should be valued as of the date of judgment rather than as of the date of rollover or transfer. The reduction in spousal support did not justify an increase in the wife’s share in the husband’s retention bonus and dividends.

Stoodley v. Stoodley, [2021] N.J. No. 10, Newfoundland and Labrador Court of Appeal, B.G. Welsh, C.W. White and L.R. Hoegg JJ.A., January 13, 2021. Digest No. TLD-March82021008