Overview

This decision addressed the Appellant’s request to set aside a final order which limited the duration of non-compensatory support payable to him to a period of 19 months from the date of separation, and which also stated he was not entitled to compensatory spousal support. In other words, the court had to address the two (2) following issues:

1. Whether the trial judge erred by not adequately considering the duration of spousal support; and,
2. Whether the trial judge erred in law by dismissing the Appellant’s claim for compensatory spousal support.

Facts

The parties married in Egypt in 1999. They were each enjoying a successful career. They jointly decided to move to Alberta. The Respondent continued enhancing her education and began excelling in her career. In contrast, the Appellant struggled in Alberta and wanted to move to Ontario to seek better career opportunities. He enrolled in a program at Seneca College. The Respondent did not want to move to Ontario and due to disagreement on this issue, she asked for a divorce. Ultimately, the Respondent agreed to the move, but the party’s decided to live in separate residences. They officially separated on June 2, 2016.

Analysis

The court recognized that in this case, the parties were married for 17 years, had two children, and operated as an economic partnership, making joint education, career and international immigration decisions. At the time of separation, the Appellant was 46 years old and was not earning any income despite having previously earned a significant income in Saudi Arabia prior to the party’s move to Canada. Prior to her acceptance of an employment position with base pay of $116,000, the Respondent had been earning in excess of $200,000 per year.

The trial judge’s decision leading to the final order in question was determined based on the following factors:

• At the time of the marriage, both parties were employed on a full-time basis earning similar incomes;
• The Appellant did not meaningfully contribute to the Respondent’s MBA and there is no evidence that her degree impacted appreciably on her career or that any contributions he did diminished his earning capacity;
• Although the Appellant was out of the workforce for a number of years, he used this time to further his education and did not primarily care for the children or perform household tasks beyond grocery shopping;
• The Respondent did not demand that the Appellant leave his job in Saudi Arabia and join her in Canada; and
• The trial judge did not accept the Appellant’s evidence as to why he was unable to find employment or did not complete the required third level of his CPA course of study.

The court noted that the trial judge did not give reasons for limiting the duration of spousal support, or why they departed from the range of 8.5 to 17 years as suggested by the Spousal Support Advisory Guidelines, and found that as such, the period of duration must be set aside.

The court found that the first four factors noted above were not a sufficient basis in law to dismiss a claim for compensatory support as they did not consider the overall objectives of an award for spousal support or the compensatory basis for spousal support that is incorporated within the SSAG “with child support” formula. The goal of compensatory support is to ensure that the post separation economic consequences of the roles adopted by spouses during a relationship are not disproportionately borne by one spouse alone, but instead are shared equitably. The question to be determined is whether a party was disadvantaged or gained advantages from the marriage, and whether the marriage breakdown in fact led to economic hardship for one of the spouses. The court must consider what actually happened in the relationship, and not what might have happened had the spouses made different choices. When considering the facts in the case at hand, the court found that the trial judge did indeed err in law by dismissing the Appellant’s claim for compensatory spousal support.

Conclusion

The court granted the appeal and remitted the matter for a new trial.