Background

Following the breakdown of a 30-year marriage (from September 1992 to September 2021), the applicant wife moved for a temporary order for spousal support.

During the marriage, the wife had stayed home to care for the children, but she was now employed and earning a little over $40,000 yearly. The husband earned over $100,000 yearly.

Post-separation, the wife remained in the matrimonial home and bore all of its operating costs (mortgage, taxes, insurance…etc.). The husband willingly paid spousal support and made monthly payments towards the parties’ joint debts until April 2022, when he learned that the wife had a tenant who paid rent. The wife submitted that the tenant moved out in September 2022, and so, though she had initially refused, she was now willing to list the home for sale.

Issues

Was the wife entitled to a temporary order for spousal support?

If so, what amount of spousal support should be awarded?

Analysis

The court noted that spousal support could be awarded on a non-compensatory basis, which recognizes the obligation spouses have to support one another and the interdependence that develops between them. This basis for support is especially relevant in long-term marriages.

Noting the purposes of a spousal support order, as set out under section 33 of the Family Law Act, the court stated that the moving party must only establish a prima facie case of entitlement on any of the grounds listed in the Act:

33 (8) An order for the support of a spouse should:

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

The wife was entitled to the temporary order she sought, in light of the above.

In regards to the amount of support to be awarded, the court looked to section 33(9) of the Family Law Act:

In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

. . .

(j) a contribution by the dependant to the realization of the respondent's career potential;

. . .

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

. . .

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

. . .

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child

It was held that the wife’s refusal to agree to list the home for sale and the rent money she received should not affect the amount of ongoing spousal support, as was argued by the husband.

There was nothing unreasonable in the wife’s efforts to remain in the home, nor about her refusal to share the rent she received with the husband, for she had paid all associated costs for the home herself.

Furthermore, the joint debts towards which the husband had made payments were found to have been incurred mainly due to his spending habits or for property in his sole possession.

Finally, the court found that the total amount of support paid to the wife prior to September 2022 was actually less than the amount the husband should have paid, as per the Spousal Support Advisory Guidelines.

Though the husband alleged that the wife could be earning more if she worked additional hours per week, the court did not agree, as the wife was shown to be taking additional hours at her work when she was given the opportunity to do so.

Conclusion

Accounting for the fact that the wife would be paying the mortgage of the home herself – which would benefit both parties, and the fact that the joint debts of the parties related to possessions solely owned and enjoyed by the husband, the court found that the wife was entitled to support at the high end of the Guidelines, in the amount of 2,568 per month. After the sale of the home, or after six months (whichever came first), the support would be reduced to closer to the mid-range, in the amount of $2, 297 monthly.