Miscellaneous Cases
The brief notes below are only synopses and summaries of recently
released decisions and as such 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. Please check Caveat and Note About Sources for a description of the sources used to collect these cases.
I am gratefully indebted to Shelagh Mathers of Campbell & Mathers,
in Picton, Ontario, for her assistance in compiling the
cases found below. Shelagh has been in practice since 1988 and serves
clients in Prince Edward County and surrounding areas. You can reach
her by phone at (613)476-2366 and by fax at (613)476-6064. You can
also e-mail Shelagh directly.
Joel Miller
SPOUSAL SUPPORT ISSUES
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Bracklow v Bracklow, (March 25, 1999) S.C.C.
The parties married in 1989 after lived together for 4 years. Wife had 2 children from previous marriage. Her income
was greater during the beginning of the relationship and the parties agreed
that she would pay 2/3rds of the household costs. Later they shared costs
and chores 50/50. In 1991 wife stopped working entirely due to
psychiatric problems, and husband supported the family. The parties
separated in 1992 and divorced in 1995.
Interim spousal support of $275/mo was increased to $400/mo in May 1994. Wife also receiving $787/mo disability
benefits.
Trial judge refused to order spousal support and found there
was no express or implied agreement that either party would support the
other, her health problems were not due to the marriage and she had
experienced no economic hardship as a result of the marriage or its
breakdown. Husband suggested that support continue until May 1996
and the judge so ordered. The BC Court of Appeal affirmed the
trial decision.
Wife's appeal to the Supreme Court of Canada was allowed and the matter
was sent back to the trial judge to assess the amount and duration of
spousal support. While the early years of the relationship involved two
relatively independent parties, by the time of separation their
relationship was interdependent. They shared expenses and the husband
supported her during the initial stages of her illness. The Court held
that wife experienced economic hardship under the terms of the Divorce
Act as a result of the separation; she demonstrated a need for support and
husband had the means to pay support. The Court took into account the
length of cohabitation and the fact that it was unlikely that she would
work again.
[For a more full discussion of this case and its significance, as well as a link to the SCC's decision see:
Does It Ever End?]
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Doe v Doe, (March 10, 1999) Ont Ct. Gen. Div.
The parties had been married for 20 years and had four children. After
separation the parties entered into an agreement that provided for $3,000/mo spousal
support, which was increased in July, 1987 to $4,500/mo
The husband retired from the partnership in his law firm in February 1996,
remaining as an associate until the end of June 1998. He chose a
withdrawal option which provided to him a significant lump sum, as opposed
to plan that would have provided an income. The husband applied to reduce
support on the basis that he no longer had the ability to pay. His
application was dismissed. Retirement alone, which was foreseeable, was
not found in this case to be a material change in his circumstances. The
court found that he had not demonstrated a material change and he had the
ability to pay support.
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Van Doorn v Van Doorn, (March 16, 1999) Alberta Q.B.
The parties had been married for 13 years. The wife had care of the
two children. They entered into a separation agreement in
1989 that preserved the wife's right to spousal support.
In 1998 the wife claimed spousal support; she had multiple sclerosis which
had been exacerbated by a car accident. As well, she had lost money in a
capital investment and had declared bankruptcy. She was not employable.
Her income was $3,100 in disability payments. The husband denied an obligation, stating that her need was not related to the marriage. He earned $100,000 per year.
The Court ordered spousal support of $1,000 per month, citing the
entitlement preserved in the separation agreement and also section 15 of
the Divorce Act. The court found that the wife had been disadvantaged as a
result of the marriage breakdown and was unlikely to become self-sufficient.
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Holmes v Holmes, (March 17, 1999) Alberta Queen's Bench
In December 1995 a divorce judgment provided for three years of spousal support
at $1,725/mo. The parties had been married for almost 22 years and had one child for which the wife continued to provide care . After separation the wife enrolled in school and in September 1998
was enrolled in a marketing program. She applied to the court to extend her entitlement to receive spousal support as she hoped to be finished to schooling in May 1999. The husband took the position that the wife was deliberately prolonging her schooling and was not really motivated to become self-sufficient.
The Court permitted spousal support to continue, noting that the wife was
not economically self-sufficient. The fact that the wife had received over
$340,000 in property from matrimonial assets was considered. The
husband had the ability to pay and the wife had demonstrated need. Spousal
support was ordered for six months beyond the three years provided for in
the judgment to be reviewed after that six month period.
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Malicki v Malicki, (March 4, 1999) B.C. Sup. Ct.
The parties had been in a traditional marriage for 20 years and were
divorced in 1982. The husband had been paying support for the wife until
1987, at which time he suffered a stroke and claimed he could no longer
work. The husband applied in provincial court to reduce arrears that had
accrued and end his support obligation. The provincial court judge decided
that 17 years was enough time for the wife to have achieved
self-sufficiency and therefore terminated spousal support of $150/mo and reduced arrears to $26,500. The wife appealed.
The B.C. Supreme Court allowed the appeal, noting that the wife had not
worked outside the home in 25 years. In focusing on self-sufficiency the
provincial court judge had failed to consider all factors cited in section
89(1) of the Family Relations Act. The judge failed to consider the
economic disadvantage arising from the marriage, the roles of the parties
during marriage, and the efforts the wife had made to become
self-sufficient. The husband's circumstances had changed and therefore
spousal support was reduced to $10/mo and arrears were set at
$42,500.
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Wyman v Wyman, (Feb 3, 1999) N.S.C.A.
The parties were divorced after a 30 year traditional marriage, and in 1993
the husband began paying spousal support of $1,000.00 per month. The
husband lost his $70,000 to $80,000 per year job in January 1998 and
received employment benefits until July 1998 when E.I. kicked in at $1,788
per month. E.I. runs out in August 1999 at which time the husband will
receive pensions totalling $1,100 per month.
The trial judge reduced spousal support to $500.00 per month, leaving the
husband with total monthly income of $1,288. The husband had remarried and
the new wife's financial contribution was unclear. The first Mrs. Wyman
had no other income apart from support and showed a 1995 budget of $680.00
expenses.
On appeal support was increased to $700.00 per month. The trial judge
erred in placing the onus for seeking employment on the first Mrs. Wyman
alone; Mr. Wyman and his second wife should also be seeking employment.
Kassam v Kassam (March 1999) (B.C.S.C.)
In March, 1997, a final order was made providing that the wife have,
among other things, custody and child support. This was before the implementation
of the new Federal Guidelines. After the passage of the legislation
introducing the Guidelines the wife brought an application that
the husband be found in contempt for not complying with the financial
disclosure requirements of the Guidelines, and that he be required
to provide the financial information required by the Guidelines.
The wife was not trying to vary the existing order.
The court rejected the wife's application, finding that an order made
before May 1, 1997 is not the same as a child support order as set out
in the Guidelines, but is to be treated the same for the purposes
of variation, recission, enforcement or suspension. The application
before the court was not related to any such proceeding. The court found
that the obligation to provide financial information arises only upon
such a proceeding having been started.
Bildy v Bildy (February 1999) (Ont. C.A.)
The parties separated after 13 years of traditional marriage; the
wife had custody of the two boys, aged 9 and 11. The husband was a
lawyer with a gross practice income of $240,000.00 The parties agreed
that the husband pay $30,000.00 child support for each child and a
further $30,000.00 per year spousal support. The wife had to pay the
husband $6,000.00 per year on account of equalization. The trial judge
ordered that spousal support be limited in time to five years, ending
in 2002.
The wife appealed. The Court of Appeal varied the judgment to provide
that the wife receive support of $30,000 through to 2006, at which
time either party was free to bring the matter back for review of
quantum. The Court of Appeal was of the view that the trial judge
placed too much emphasis on self-sufficiency as a factor in determining
that spousal support should be time-limited.
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Finnie v Finnie, (December 21, 1998) (Ont. Gen. Div.)
The parties married in 1987 and separated in 1996. Two
children, ages 9 and 6, both with Ms. Finnie. Mr. Finnie's income for 1999
found to be $36,621. Ms. Finnie works part time, but this income merely
supplants the public assistance that was being reduced by an earlier order
for spousal support. Tutoring and child care were held by the court to be extraordinary expenses
and the parties were ordered to share these expenses (Mr. Finnie to pay 65%).
Mr. Finnie disputed Ms. Finnie's entitlement to spousal support. Ms.
Finnie's possibilities for full time employment are limited by her
education, her child care responsibilities and job opportunities in the
small communities surrounding her place of residence. On the other hand she is
34, in good health and the judge stated that she should be preparing to
release her husband from spousal support as is the intention of the Family
Law Act.
Spousal support in the amount of $300 per month was ordered, but as of
December 31, 2001, Ms. Finnie has to show cause as to why she requires
continued spousal support.
An interesting aspect of this case is that child support was ordered pursuant to the
Guidelines and then indexed pursuant to ss.34(c) of the Family Law Act.
Della Zazzera v Della Zazzera, Ont. Gen.
Div. (Nov. 27, 1998)
Court estimated husband's annual income to be in range of $175,000
to $200,000. Wife had employment income of $3,000 per month to beginning
of 1999, at which time her income would consist solely of commission
earnings. Husband's application to reduce spousal support obligation
from $4000.00 allowed: support reduced to $3,500.00 per month.
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Dunham v Dunham, Ont. Gen. Div. (Nov
18/98)
The parties separated after 16 years. Their two children were ages
7 and 9 and the older child was seriously handicapped. Parties had
interim joint custody and mother cared full time for the handicapped
child and father had care of younger child during the week and one
weekend each per month.
Wife's application for sole custody of both children granted only
with respect to the elder child; no need to change existing arrangements
for younger child. Wife had no income. Both parties had to maintain
suitable residence for younger child. Wife's application for support
for herself and both children granted despite arrangement with younger
child. Husband found to have under-estimated his income, stating $49,000.00
- court attributed income of $67,500.00. Husband ordered to pay spousal
support of $1000.00 per month and full child support for two children
at attributed income of $67,500.00 for total monthly child support
of $902.00. Wife's claim for damages for assault against her by husband
allowed and $1000.00 awarded.
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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 earning $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.
CAVEAT and NOTE ABOUT SOURCES
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 Syrtash Family Law Netletter (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, caswes posted onn the Internet by the
Supreme Court of Canada and The British Columbia Superior Court and
Court of Appeal and the Ontario Court of Appeal 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 Netletter (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 - unless the case
is a decision of the Supreme Court of Canada, the Ontario Court of Appeal
or the British Columbia Superior Court or Court of Appeal, whose decisions
are available on the Internet. 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 judgements.
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.
If you know of any case you think should be included to the listing above,
please send me an e-mail
with the information. Thanks, Joel Miller.
