Hancock v Rutherford, 2018 ONSC 556

This case involves an appeal of a motion to change, whereby the Judge ordered the termination of a prior indefinite spousal support order.

Issue

As per the Ontario Superior Court of Justice (Divisional Court), this case involved the following issue: Did the motions judge err in changing the prior indefinite spousal support order to a definite, three year, step-down order?

Background

The parties were married on May 9, 1986, and separated on July 22, 2004 – theirs was an 18-year marriage.

In 2015, the husband brought a motion to change and sought a termination of spousal support.

The motions judge found that the wife’s health issues did not prohibit her from full time employment and further found that she had an opportunity to make herself employable and become self-sufficient. Given same, the motions judge made a three-year step down support order (where the husband would pay $1,100/month in spousal support for the first year; $900/month in spousal support for the second year; and $800/month in spousal support for the third year).

The wife appealed the motions judge’s order, dated January 8, 2015.

Analysis

The Court – which comprised of three judges – noted that the parties agreed that the standard of review for this appeal is as set out in the Supreme Court of Justice’s decision of Housen v Nikolaisen, [2002] 2 SCR 235.

The wife argued that the motions judge failed to consider that the parties’ had cohabited for approximately 3 years prior to their marriage (making theirs a 21-year relationship). The Court disagreed.

The Court noted that the wife failed to raise the issue of cohabitation at the motion, and further noted that reference to the cohabitation was only made in a Trial Management Conference Brief (which was dated ten years earlier). Given same, the Court found that it was “axiomatic” that the motion judge could not have committed a palpable and overriding error.

The Court further reject the wife’s argument that the motions judge erred in terminating an indefinite support order by making a step-down order that is prospective in nature. In doing so, the Court relied on section 7.5.2 of the Spousal Support Advisory Guidelines, that which provides:

…an order for indefinite support does not necessarily mean permanent support… support may even be terminated if the basis of the entitlement disappears.

The Court concluded that it was open to the motions judge to find as she did, that support should be terminated. The Court found no reason to interfere with the motions judge’s order, and subsequently found in favor of the husband.