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 Cases Decided Prior to January, 1998
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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.
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.
