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MAINTENANCE AND SUPPORT - Spousal support - Considerations - Compensatory support - Economic disadvantage of marriage - Amount of award - Lump sum award - Practice and procedure - Appeals

Thursday, January 18, 2018 @ 8:32 AM  

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Appeal by the husband from the award of spousal support. The parties married in 1990 and separated in 2012. They had two children who were 19 and 24 years old at the time of the wife’s petition for spousal support and other relief. The elder child was married, but she, along with her husband, continued to live with the wife. Just before trial, the younger son moved in with the husband. The husband was in a new relationship with a woman with a minor child. At the time of trial, the husband was 49 years of age and had an annual income of approximately $100,000. The wife was also 49 years of age. She maintained her pre-separation employment as a legal assistant, and earned $63,303 in 2015. The judge found that the wife was entitled to compensatory support as she had suffered economic hardship from the breakdown of the marriage. The judge concluded she was the children’s primary caregiver during the marriage, which affected her ability to work, and she lost the financial support of the husband following the breakdown of the marriage, and her standard of living had declined. He calculated spousal support in accordance with the mid-point of the Spousal Support Advisory Guidelines (Guidelines) amount, being $1,194 per month, and determined that support should be payable for 10 years. Given the animosity between the parties, he ordered lump sum spousal support in the amount of $143,280. He declined to find that the son was a child of the marriage for the purposes of spousal support. The husband appealed the award of spousal support. He argued that the judge erred in finding that the wife was entitled to compensatory support and failed to consider the impact of one of the children residing with him.

HELD: Appeal allowed to a limited extent. The application judge did not err in ordering compensatory spousal support. The wife suffered economic disadvantage from the marriage and its breakdown, as the marriage was long-term, the parties had two children and her standard of living had declined. The application judge's order was not simply an award based on the disparity of the parties' incomes. The judge did not err in failing to treat the parties’ youngest child as a child of the marriage for the purposes of calculating spousal support given that he had only recently moved in with the husband and there was an absence of information about his circumstances. More information was required to make a finding that the son was a child of the marriage. An adjustment of support was made to reflect the non-taxable nature of the lump-sum support ordered. The paragraph of the divorce order requiring the husband to provide ongoing disclosure was deleted, as ongoing disclosure was not appropriate where lump sum spousal support had been ordered.

Perri v. Perri, [2017] O.J. No. 6618, Ontario Court of Appeal, S.E. Pepall, P.D. Lauwers and G.I. Pardu JJ.A., December 19, 2017. Digest No. TLD-January152018007