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SNIPPETS: SPOUSAL SUPPORT CASES


Scroll down for a random selection of recently decided cases in summary form dealing with spousal support issues

Snippets Main Table of Contents

  • Caveat and Note About Sources
  • Child Support Guideline (CSG) Cases
  • Child Support Guideline (CSG) Cases - Prior to Jan/98
  • Non-Guideline Child Support Cases
  • Spousal Support Cases
  • Spousal Support Cases - Prior to Jan/98
  • Custody and Access Cases
  • 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.
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    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.

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    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.
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    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

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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 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.

 
 
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