Focus On

Spousal support - Considerations - Agreement - Effect of parties’ subsequent relationships - Income of parties’ spouses - Variation or termination of obligation - Changed circumstances

Thursday, December 08, 2016 @ 7:00 PM  


Appeal by the wife from summary judgment varying and terminating spousal support and cross-appeal by the husband from the aspects of the judgment that refused to rescind the initial support order or set aside the parties’ marriage contract. The parties married in 1985. The parties executed a marriage contract the day before their wedding. The wife, age 24, had limited education and skills. The husband, age 42, was a multilingual commercial pilot. They had one child, now age 25. The wife was the family’s full-time homemaker. The husband worked as a pilot until he lost his licence in 1996. He received disability benefits thereafter and, at age 60, a retirement pension income. In 2004, the parties separated. In 2005, the wife accepted a settlement offer incorporated into a consent order. Although the husband subsequently challenged the validity of the consent order in a series of related proceedings, he made the equalization payment of $185,000 and monthly spousal support payment of $2,200 contemplated by the order. In 2014, the husband moved for summary judgment varying spousal support and rescinding the consent order. The motion judge reduced spousal support retroactively with an effective termination date of November 2016. The husband was awarded a judgment of $15,000 for overpayment of support. The remainder of the relief sought was denied on the basis the 1985 marriage contract was unenforceable. The wife appealed and the husband cross-appealed.

HELD: Appeal allowed and cross-appeal dismissed. The spousal support ruling was fatally flawed, as the motion judge misinterpreted the financial evidence in imputing income to the wife and her partner and failed to incorporate changes to the husband’s annual income into the spousal support analysis. In addition, the imputation of income using the income tax returns of the wife and her partner was undertaken without giving the parties a meaningful opportunity to address the issue, thereby compromising the fairness of the hearing. The refusal to set aside the consent order was supported by clear and cogent reasons, as there was no basis for finding the husband did not consent to the settlement or intend to implement it. Similarly, there was ample justification for finding the marriage contract unenforceable based on the terms of the parties’ post-separation settlement and inherent unfairness surrounding the marriage contract’s completion and terms. This was not a proper case for termination of spousal support. Based on the husband’s current pension income of $105,000 and the wife’s modest employment income, she was entitled to indefinite spousal support of $1,600 per month.