Generally speaking, long marriages (20 years or longer) usually result in a spousal support obligation where there is a discrepancy in income between spouses and one spouse can demonstrate some sort of need.  As a result, the recent judgment of Justice Glithero in Shand v Shand before the Ontario Superior Court of Justice is an anomaly of sorts.  While somewhat surprising given trends in case law, Justice Glithero’s decision is clear, well thought out, and seemingly the most appropriate and just result on the facts of the case.

In the case before the court, the Applicant, Ms. Shand, sought spousal support from the Respondent, her husband of 29 years, Mr. Shand.  The couple had three daughters, Heather, age 30 at the time of trial, Laura, age 28, and Amanda, age 22.  At the time of trial all three children of the marriage were independent.

The Applicant and Respondent disagreed as to the date of separation, the Applicant asserting that it was February 23, 2009 and the Respondent, September 2009.  The discrepancy resulted from the fact that the Respondent “continued to remain in love with [the Applicant] and would provide her with anything she needed” even after she left the matrimonial home.  It was not until September “that the Respondent came to realize the marriage was over, as a result of pictures arriving by email at the house of the Applicant and Mr. Beazer, [the Applicant’s landlord and romantic partner] at a Sandals Resort on one of their holidays.”

The court’s analysis centered on whether the Applicant was entitled to spousal support, either on a compensatory, contractual, or needs basis.  Justice Glithero sought to answer the question of whether the Applicant’s need for spousal support resulted from the marriage or whether it was self-induced.  The court dismissed the Applicant’s medical excuse and accompanying report by her doctor, holding that the doctor’s comments did “not seem to be founded on any concrete test results, but rather simply [reflected] what he was told by the Applicant.”  The court also observed the Applicant’s failure to seek out other work and accepted the Respondent’s evidence that prior to quitting her job, the Applicant threatened to do so and said that she was going to “ruin” (the Respondent) and “make him support her as she had supported him.”

Justice Glithero canvassed the relevant legislation and case law highlighting the objectives of spousal support including: to recognize economic advantage and disadvantage to the spouse arising from the marriage or its breakdown; to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for support of any child of the marriage; to relieve any economic hardship to the spouse arising from the breakdown of the marriage; and insofar as is practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Justice Glithero was also mindful of the fact that under s. 15.2(4) of the Divorce Act, he is required to take into account the “condition, means, needs and other circumstance of each spouse, including: (a) the length of time the spouses cohabitated; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.

Finally, Justice Glithero also reminded himself that spousal misconduct is irrelevant.

In his analysis of whether spousal support was appropriate in the situation, the Justice focussed on the fact that the Applicant had “essentially decided to end the marriage for no apparent reason,” had lived well beyond her means and incurred significant debt, and finally, knowing of the debt, had quit her job, expecting that the Respondent would care for her.

Although spousal conduct is to play no part in the analysis, Justice Glithero’s reasons nevertheless seem to be influenced by his impressions of the Applicant, her reasons, or lack thereof, for leaving, her disregard for the means and needs of the Respondent or her family, her disregard for joint debts, and her unwillingness to support herself despite the absence of evidence that she had a medical condition impeding her ability to pursue employment.

One of the crucial factors in Justice Glithero’s analysis was the fact that both parties had worked over the course of the marriage.  The court held that there was no evidence that the marriage caused the Applicant to pursue any particular career choice or that her career potential was limited by the fact of the marriage and it obligations.  Additionally, there was evidence that the jobs the Applicant had during her career were the ones she wanted—there was no evidence of higher aspirations.  Finally, the court could find no evidence of any economic disadvantage to the Applicant as a result of the marriage.

Justice Glithero summed up his findings, asserting:

I am not unmindful of the length of the marriage, but there is no evidence that this impacted negatively on her career prospects…If the Applicant had continued to work, on the evidence I have heard, her income would have continued at $48,000 per year, or $4,000 per month.  As in my opinion, the loss of that income was directly the result of her own conscious decision, and on any consideration of spousal support, I attribute that income to her.

If this had been a traditional marriage, there is almost no question that the court’s decision would have favoured the wife.  A court would not expect a stay-at-home wife to become immediately self-sufficient after 29 years of marriage, and would likely award support on both a compensatory and needs basis.   However, the Applicant was not a stay-at-home wife and her testimony and stated reasons for requiring support made her seem punitive, lazy and, frankly, unconcerned about her family’s well-being.

In the end, Justice Glithero held that the Applicant’s income from social assistance, though meagre, was meeting her needs according to the financial statement she swore and filed.  Moreover, the court stressed that the Applicant was a main contributor to the family’s debt; Justice Glithero noted that even if he were to find that the Applicant was entitled to support, that in his opinion, “the amounts paid to the Applicant, or on her behalf, together with the portion of the joint debts being paid by the Respondent, but which are attributable to the Applicant but for her bankruptcy, more than offset any amount of spousal support to which she might otherwise be entitled.”