SNIPPETS: SPOUSAL SUPPORT CASES

Caveat

Child Support Guideline (CSG) Cases

Other Child Support Issues

Spousal Support Issues

Custody Issues

Miscellaneous Cases

CAVEAT

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The brief notes below are summaries of recently released decisions as well as from digests and reports set out more fully in a variety of sources including the relatively new Syrtash Family Law Newsletter (one of the QuickLaw databases found as SFLN), the monthly Ontario Family Law Reporter, the case summaries found at the end of both The Lawyers Weekly and the Law Times weekly legal newspapers and the public press. The summaries here are done for general information by the Family Law Centre and are not the responsibility of any of those sources.

As these are only synopses and summaries they should not be relied upon as an accurate description of the law contained in the actual judgments referred to. Always check the actual report before relying upon a comment set out below.

If you have access to QuickLaw, you will be able to find the excellent Syrtash Family Law Newsletter (SFLN) with John Syrtash's full summary and comments along with the report of the case itself. That is the most direct way to get the written decision of any case without obtaining a copy from the lawyers involved or the court office. Both The Lawyers Weekly and The Law Times have fax services which will send you copies of the decision at a charge. Many of the cases set out below will eventually be reported in the regular print legal reports and available from your local law library.

The Family Law Centre will not be able to supply copies of full judgments. To get further information if you are not a lawyer with access to the sources referred to above, you are advised to retain one to do the research you want or to follow up on anything you find of interest below.

Note: The designation means that the summary is new and is the most recently added case or group of cases to the section, not necessarily that the case is more recent than the others noted below it.

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SPOUSAL SUPPORT ISSUES

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Spezowka v. Reed, Alta. Q.B.(July 2/98)

Parties married for 8 years. At divorce hearing husband earning around $80,000 and wife earnig $24,00 from part time employment but said she was going to return to university. Court ordered spousal support of $1,500/mo. and child support of $1,000/mo. House sold and wife got all of proceeds. She moved and took a job earning over $40,000 rather than go back to school. Husband reduced spousal support payments to $500. Two years later wife claims $29,000 in arrears.

Court terminated spousal support on grounds that wife now self sufficient and no longer in need. Also held that her going to work rather than school constituted a material change of circumstance which might have resulted in her support being terminated at the time. As well, by not claiming any arrears for the two years the wife was held to have acquiesced in the reduction. Therefore the arrears were wiped out. Child support changed to fit the Guidelines.

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Sears v. Sears, N.S.S.C.(June 11/98)

Parties were married in 1970 and separated in 1993. They reconciled and separated again in 1997. At time of reconciliation husband required wife to sign a marriage contract in which she gave up her claim for support, got the house, he got the cottage and he kept all of his interest in his fishing business. Upon second separation wife asked for the marriage contract to be set aside. It was prepared by husband's lawyer who insisted she get independent legal advice. She did and that lawyer advised against signing th contract. She signed anyways because she was lonely, having difficulty looking after their child alone and fearful she would lose her husband to another woman.

Court felt wife gave away too much by giving up any claim for support after the Supreme Court of Canada's decision in Moge v. Moge held that self sufficiency was only one of four factors to consider in awarding support under the Divorce Act. As well, she didn't know the value of the business assets to which she was releasing any claim. She got very little in return. Court held that the contract was unconscionable and should be set aside in its entirety with respect to both spousal support and any other claims the wife might now be able to advance.

[Quaere: What other protection could the husband have sought to carry out his wish? Would the decision have been less unconscionable if he had declared the full value of his business and the wife signed the agreement in any event. Was she concerned about what she was giving up in exchange for getting her marriage back at the time? Could sh claim that even if she knew the value of what she was giving up it was worth having an intact and lasting marriage and when it broke up again she was entitled to have her bargain undone because she no longer had the marriage?]

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Fuller v. Fuller, B.C.S.C.(July 21/98)

Wife is 54 and husband 56. They separated after 28 1/2 years of marriage. He is a doctor receiving $5,345/mo. disability payment due to depression and lives with a 37 year old partner who can't work but receives about $12,000/yr income which she contributes to their living expenses. Husband left work after the separation. Wife has masters degree earned during marriage and now lives in a small, walk up apartment, in Paris where she teaches and translates earning about $19,000/yr. She had order for support for 1 year at $4,000/mo before husband retired which was renewed for a year. There are about $25,000 in arrears. Court followed Moge v Moge that while self-sufficiency was important it is only a goal "insofar as is practicable". Wife wanted half of husband's disability pension ($2,672). Court ordered support for a further 2 years at $1,600/mo plus payments of $250/mo towards arrears and thereafter $1,600/mo to pay the balance of the arrears.

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Mohoney v. King, Ont. Gen. Div.(Jun. 3/98)

Court held that issue of whether parties in this case were actually cohabiting was highly dependant upon the particular facts of their relationship and sent the issue to trial. However, Justice Wilson held that even though the man was married and continued to live in the same home as his wife and not with the claimant they could be regarded as cohabiting. In this case they had a 4 year relationship sharing sexual relations, traveling together, exchanging gifts and the man supported the woman financially.

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Tabel v. Tabel, Sask. Q.B. (Dec. 22/97)

Parties had a separation agreement providing wife with support at the rate of $1,500 per month until she died, subject to a review if there was a material change in circumstances. They had a 23 year marriage. Wife moved in with here common law partner and husband said that this was a "material change in circumstances" and that she hadn't done anything to become self sufficient. The court applied the SCC decision in G.(L.) v. B.(G.) and decided that the original support order was not based upon a "needs analysis" and the just because a change is objectively foreseeable doesn't mean that these parties actually considered it. The separation agreement didn't set out living with in a common law relationship as a terminating event or as a material change. The court felt that it was "illusory" to think the wife could or should achieve self sufficiency considering that this was a lengthy marriage, the age of the wife and the fact that she had been totally dependant on her husband during the marriage. Under the circumstances the wife's move to live with another man didn't constitute a "material change in circumstances".

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Marck v. Parrotta-Marck, Ont. Fam. Ct. (Oct. 9/97)

Husband earning $194,000 and ordered to pay monthly child support of $2,000 (see above for details). Wife had been primary care giver even while pursuing her MBA degree and had not sought full time employment since receiving it the year they separated, 1994. Wife had deferred her education on consent but now had the means of obtaining a well paid job. Court ordered spousal support of $2,500 for a fixed term of 7 years with proviso that no income earned for the first 42 months would be considered a material change in circumstances.

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Turgeon v. Turgeon, Ont. Gen. Div. (Sep. 2/97)

On appeal the court upheld an arbitrator's award of $865/mo indefinitely to former wife in 29 year old marriage where husband earned $40,650 per year. Husband held that award should be overturned because, since separation, wife began cohabitation with surgeon from Quebec earning $100,000 per year and she had some part-time income.

Court held that under Quebec law the surgeon had no legal obligation to support the wife. Cohabitation doesn't automatically disentitle a spouse or former spouse to spousal support. Although it may effect the level of need, depending upon the circumstances of the case, need is just one of the factors to consider - not the sole or even primary factor (Moge v. Moge).

Arbitrator considered the wife's new lifestyle because the award would otherwise have been $1,4000/mo.

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Reid v. Reid, N.B.C.A., (Oct. 3/97)

Wife had been able to find low paying employment at each of the locations to which the husband had been posted and was working in community where they lived at time of divorce. She had no family support or network there and moved back home but was unable to find a job because it was an area of high unemployment. Husband argued she shouldn't be entitled to indefinite support if she deliberately moved to area with no employment prospects for her. Court at trial held that the move was reasonable under the circumstances and Court of Appeal agreed that she should not be granted fixed term support.

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Heung v. Heung, B.C.C.A., (Sep. 24/97)

Parties married in 1973 and wife ceased working to raise their family. They separated in 1981 with an agreement and court order including support to wife with a formula for increases which was more generous than actual cost of living increases. Husband's net assets had increased significantly but he was now earning very little. He owed over $100,000 in arrears and sought to vary and wipe them out because his income had dropped significantly and he felt wife should be taking steps to support herself. Court held no. He had arranged his affairs to increase his capital wealth at th expense of income and there was nothing in the agreement suggesting that the spousal support should end unless a specified event occurred. It hadn't and therefore the support was to remain in force.

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Sagl v. Sagl, Ont. Gen. Div. (Jul 11/97)

The Court held that the husband's contingency interest as a capital beneficiary in a family trust he created 2 years before the second marriage could be valued as part of his Net Family Property under Ontario's Family Law Act by assuming a deemed realization of the trust at the date of separation less contingent income taxes. It was felt best to "approach this difficult issue [ie: how to deal with the trust in which the husband only had a right to an income and was not one of the trustees] on a fair and equitable basis having regard to trust law, the definition of property and the evidence as to what the intention was at the time of the creation of the Trust."

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Knechtel v. Knechtel, B.C.S.C. (Aug 15/97)

Dentist and wife separated after 15 years marriage. Signed separation agreement obliging him to pay $2,400 per month spousal support and to continue to pay that if she attended school. She enrolled part time, worked part time and remarried. Husband sought to discharge his obligations. There was no fixed termination clause and the agreement specifically contemplated her returning to school to train for a new career. The remarriage was, or should have been, foreseeable. Wife says she gave up claim to husband's practice in exchange for the support arrangement. In today's world remarriage doesn't necessarily offer long term security. Court denied husband's request.

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Philp v. Philp, Ont. Gen. Div. (Aug 20/97)

Wife sought support 15 years after separation. She using up her property settlement and had variety of menial jobs. Court granted support and took into consideration that: had wife made a timely claim for support she would have received it without time limitation (42 years old and out of the work force 24 years at separation); the property division - even though it gave her more than half - wasn't an equitable distribution of resources having regard to the permanent economic disadvantage to her arising from the breakdown of the marriage; the wife's inability to support herself and her slide into poverty commencing upon separation and her inability to act in her own interest due to her undiagnosed condition of major depression coincident upon the separation.

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Gray v. Gray, Ont. Gen. Div. (June 26/97)

At time of original order for spousal support wife earning $31,620 and husband $$44,000. Parties knew wife suffering from life-threatening health problems. Her health deteriorated since then and she now unable to keep her employment. Income now $16,000 while husband's continues above $40,000. Each party entered into new, long term relationships. Wife's request for increased support denied because she hadn't been able to show any need for it. Although her drop in income was a material change warranting an examination of her support, her standard of living was now as good as, or better than, that she had at the time of the divorce as a result of her new relationship.

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Hart v. Hart, Ont. Gen. Div. (Aug 25/97)

As part of a variety of losses for the wife she also lost her claim for spousal support when the court found that she had suffered no negative financial consequences of the breakdown of the marriage and that none of the criteria set out in the Family Law Act, s. 33(8) applied.

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Sheils v. Sheils, B.C.S.C. (Aug. 21/97)

Husband earned $289,339 per annum and wanted increase in child support plus $7,500 per month spousal support. Husband ordered to pay $1,971, the Guideline amount and $5,000 per month spousal support for one year and then $2,500 per month because by the end of that year the child would have finished school, the matrimonial home sold and the wife's employment situation clarified.

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