Emerging Trends in Spousal Support

Gene C. Colman’s article, “Emerging Trends in Spousal Support” written in 2001 was an in-depth analysis of the legal principles related to spousal support including legislation and leading caselaw – as matters stood in 2001. There have been significant changes to spousal support law in Canada since 2001, the most significant of which was the addition of the “Spousal Support Advisory Guidelines“. We have deleted the 2001 article as it was very much out of date. Below, our associate counsel, Jenny Kirshen, has shared with our readers some of the recent emerging trends from the caselaw:

A. General Trends

Can you Terminate Spousal Support to a former spouse if you Re-Marry? TREND: YOU MAY BE ABLE TO TERMINATE SUPPORT TO A FORMER SPOUSE IF YOU REMARRY, ESPECIALLY IF THERE ARE CHILDREN IN THE NEW RELATIONSHIP.
- Bernier v. Bernier, 2018 ONSC 4554, 2018 CarswellOnt 12187 (Ont SCJ).
  - § In this case the Husband (H) sought to terminate spousal support to his former Wife (W).
  - § The H had remarried, had two young children and retired after 35 years of military service. At the time of the motion. H’s second wife was working, and H was at home full time caring for his young children. He earned $91,000 in pension income after retirement, of which $63,700 was going towards his support obligation.
  - § The court determined that H had fully met his support obligation towards W.
  - § He had paid support for eleven years after a fifteen-year marriage with no children.
Are Spousal Support Recipient’s Entitled to Share in Post-Separation Income Increases of the Payor’s? TREND: RECIPIENTS WITH COMPENSATORY SUPPORT CLAIMS ARE ENTITLED TO SHARE IN PAYOR’S POST-SEPARATION INCOME INCREASES.
- Easton v. Coxhead, 2018 ONSC 4784, 2018 CarswellOnt14173 (Ont SCJ).
  - After a twenty-seven-year marriage with two children, W sought spousal support.
  - Court found that W had a strong compensatory claim due to:
    - Long-term traditional marriage. W cared for children and maintained home. H travelled frequently for work.
    - H was primary earner. H received multiple promotions during marriage.
    - Parties financial lives were intertwined.
    - Family decision for W to stop working when youngest child was born.
  - Court decided that W was entitled to spousal support and was entitled to share in H’s post-separation income increases due to strong compensatory support claim, length of marriage and because promotions resulting in income increase occurred during marriage.
  - Court also found W entitled to share in H’s bonus.

B. Trends for the High-Income Earner/Professional

How much Capital Justifies No Spousal Support Award? TREND: THE AMOUNT OF CAPITAL THAT IS ENOUGH TO JUSTIFY NO SPOUSAL SUPPORT AWARD IS DEEPNDANT ON LIFESTYLE.
- Rochon v. Rochon, 2018 BCSC 1899, 2018 CarswellBC 2919 (BC SC).
  - Whether a spouse has enough capital to negate spousal support may be dependent on whether support is compensatory or not.
  - An equal division of family property does not mean that there is no need for spousal support.
  - This case involved a non-compensatory support claim following a fourteen-year relationship with no children.
  - The court reviewed W’s needs and determined that after equalization, she would be left with over $4,000,000 capital, plus annual investment income. H will be in a similar financial position.
  - Court decides that W has not shown a need for spousal support as asset division has addressed the objectives of spousal support.
- Plese v. Herjavec, 2018 ONSC 7794, 2018 CarswellOnt 21811 (Ont. SCJ)
  - Compensatory claim for spousal support following a twenty-four-year marriage with three children (who were adults at time of proceedings).
  - Following equalization, W will have capital of approximately $25,000,000 plus annual income from investment of capital. W was not employed and it was not expected that she would return to the workforce.
  - H’s assets would total approximately $32,000,000 following equalization. H also had annual income of approximately $5,000,000/ year.
  - Court finds entitlement to spousal support on a compensatory basis and needs basis.
  - The Court looks at the lifestyle of the parties’ during marriage and determines that it is reasonable that W spend over $10,000,000 of her total assets on a home and cottage, leaving approximately $13,000,000 to invest and earn annual investment income of approximately $650,000.
  - Court determines that W’s $650,000 annual income is not enough to address her needs.
  - The SSAG do not automatically apply since the payor’s income was over $350,000/year. The court departs from the Guidelines ordering $125,000/month in spousal support.
Professionals and Financial Disclosure: TREND: IF YOU ARE A PROFESSIONAL, PROVIDE EVIDENCE AND THOROUGH FINANCIAL DISCLOSURE, OTHERWISE THE COURT WILL IMPUTE YOUR INCOME.
- Sabeeh v. Syed, 2018 ONCJ 390, 218 CarswellOnt 8977 (Ont OCJ).
  - In this case, the support payor father was an accountant.
  - The mother had custody of the parties three children and sough child and spousal support.
  - The father was the only shareholder of a professional corporation, which he claimed earned approximately $103,000/year with expenses of $107,000. Further, the father claimed that he personally earned only $30,000 and therefore support should be paid based on that income.
  - The produced very minimal evidence to substantiate his position including no disclosure of personal bank accounts or documents to support his claimed income/expenses.
  - The court moved to impute income to the father in the amount of $130,000 based on the father’s experience, travel, assets, professional licenses in multiple provinces, recognition received for his work, and a wage survey of accountant.

Emerging Trends in Spousal Support

*This article does not constitute legal advice. Consult your own family lawyer to determine how the law may apply to your particular situation.