Bakes v. Bakes [2003] N.S.S.C. No. 202.

Parties had been married for 20 years. She earned $8 – $10K working part time and he earned $70K as a pharmacist. Separation agreement provided that spousal support of $900/mo ended if she entered into a common law relationship for 6 months. (Living together 9 months at hearing date.) H stopped support after she was cohabiting for about 3 months. W brought proceedings to enforce agreement. Court held that a common law relationship existed as new partner had taken on domestic responsibilities during her illness and W wouldn’t say if new relationship would end if new guy didn’t increase his minimal financial contribution after his own divorce. Court also found terms of agreement were far more onerous to H that to W and there wasn’t anything inherent in the marriage or the parties’ roles to suggest that W’s support should go on indefinitely. Spousal support terminated. Agreement upheld.
Lesson: if you want support to continue make it clear he’ll leave if he has to support you. And we thought a 20 year marriage made indefinite support pretty “inherent”. Not in Nova Scotia.

Gill-Sager v. Sager (2003), B.C.C.A. 46.

A few weeks after 1980 marriage W was in a car accident that, amongst other injuries, left her blind. As part of her treatment she received blood transfusions causing her to contract Hepatitis C. The disease went into remission. The marriage broke down and her claim for spousal support was dismissed as she had more disposable income than H. She appealed stating that if her Hepatitis C returned and her present means of support ceased to be adequate she wanted to be able to bring a fresh application for support. Appeal allowed.
The law is unsettled on question of whether spouses whose claim for support pursuant to the Divorce Act is dismissed are precluded from ever succeeding on subsequent applications, no matter what change of circumstances. Does this mean BC Court of Appeal isn't sure if support claims ever die?

Cymbalisty v. Cymbalisty (2003), MBCA 138.

Parties married in 1961 and divorced in 1989. H paid spousal support of $750 per month for 17 years. He was in his mid 60’s and had been released for his job as an accountant. He wanted to cancel support because he was now living on the RRSP’s which were equalized on separation. (He also was living with a working second wife.) Court held RRSP’s and regular pensions are different and that double dipping is okay in certain circumstances.
Good review of the double dipping cases and concludes that the exception which the majority envisaged in Boston v Boston which allowed it will likely become the most common approach. Justice Philp quotes an excerpt from an article by Professor Carol Rogerson as follows:

“Over the long run, it is possible that the exception might replace the rule, in which case the response to “double dipping” generated by the majority ruling will be little different in practice from that favoured by the dissent – a flexible, case-by-case approach in which the entire pension may be considered for support purposes if, after reasonable use of equalized assets, a trial judge in his or her discretion decides that there is remaining need or disadvantage. Boston is unlikely to bring the desired degree of certainty to this area of law, and legislative reform remains a priority.”

The decision continues:

“That viewpoint was a prophetic one. In cases where the payor spouse has retired on pension and sought a reduction of the spousal support obligation, courts across the country have found circumstances and factors that support continuing need or disadvantage and permit double recovery. That was the finding in Meiklejohn v. Meiklejohn [(2001), 19 R.F.L. (5th) 167 (Ont. C.A.)]. Rosenberg JAM., writing for the court, concluded that "the general rule against double dipping does not apply in this case" because "an economic hardship from the marriage or its breakdown persists" (at para. 15). In reaching that conclusion, he considered the unsatisfactory evidence on the unequal zed portion of the husband's pension, the fact that the support was, to a significant extent, based on need rather than compensation, the wife's needs and the finding that it was reasonable for the wife to retain the home that was her most significant asset.”

In this case court felt the facts fell into the situation of the exception to the application of Boston, not the application of the minority decision.

Lesson: Don’t get scared away from claiming support just because it might mean double dipping. Cymbalisty sets out lots of cases where judges find sufficient reasons to fit into the Boston exception rather than follow Boston as a general rule.

Bosanac v. Bosanac [2003] O.J. No. 1187. (Ont. C.A.)

Parties separated in 1998 after a 15 year marriage and kids. W stopped working when first born to care for family. While at home, she became involved in the management of some of H’s businesses. This lasted for 9 years at which time the H took over her work. Court held lower court right to impute income for spousal and child support purposes if the payor can’t justify retaining the money in his company.

Lesson: Controlling your income to show low amount for support purposes won’t work – unless you can prove that was an appropriate business decision. What will a court think is appropriate enough to build up the business while keeping support low?

Walker v. Greer (2003), WL 21994885 (Ont. S.C.J.)

Parties married in 1974, separated in 1992, and divorced in 1994. W first applied for spousal support 10 years after the separation and 8 years after divorce. H felt no support should be paid. Court disagreed. Time delay doesn't bar claims for support if there are justifiable reasons and events that can explain the delay. H was unemployed at time of separation and barely able to meet his obligations to pay child support. Also, W worried that if she attempted to seek spousal support she could be faced with a counter suit for an equalization claim. Finally, the wife expressed an interest in wanting to make it on her own. That's good enough for Ontario.

Lesson: If you want your spousal support releases to stand, be sure that the agreement fits the Miglin requirements – don’t try to pay the least amount you can get away with.