Overview

In this case, the court considers a motion brought by the Applicant who was seeking an Order to deal with the proceeds of sale from the jointly owned matrimonial home on the basis that sufficient funds be available to meet a potential lump sum spousal support payment for prospective spousal support.

Facts

The parties began cohabiting together in March of 2009, married in September of 2014, and separated in September of 2021. They had one child together during their relationship.

Each party contributed to the expenses relating to the matrimonial home following separation. The home sold for $912,500, with the sale set to close in February of 2024. The parties had already settled the issue of equalization, thus the issue regarding the holdback of sale proceeds from the matrimonial home pertained to the Applicant’s claim for spousal support.

The Applicant is self-employed as a landscaper. The Applicant reported his annual income in 2022 to be approximately $27k. The Respondent, however, argues that the Applicant’s income is not accurately disclosed on his tax returns, and thus argues his income should be imputed on the basis of minimum wage.

The Respondent is an interior designer and works with builders in designing homes. At separation in 2021, her annual income was approximately $73k, rising to $100k in 2022 due to a short-term contract. Her job was terminated in 2023 and she began working part time and receiving employment insurance benefits, until she commenced employment with a new employer in October of 2023 earning $34 per hour.

Analysis

The onus is on the spouse seeking an Order for lump sum spousal support to provide some evidence that may support such an Order being made at trial.

The court noted that most spousal support orders will be in the form of periodic payments, but they nonetheless reviewed the case of Davis v Crawford, which provided examples where lump sum spousal support may be appropriate. These examples include:

• Terminating ongoing contact between parties;
• Short-term marriages;
• Domestic violence;
• Second marriage with no children;
• Providing capital to meet an immediate need of the dependent spouse;
• Ensuring payment where there is a real risk of non-payment of periodic spousal support; and
• Satisfying an immediate award of retroactive spousal support.

The court then applied those examples to the case at hand. They found the first was likely not applicable given the parties have a child together. The court also did not see the immediate need of capital, as the Applicant was going to be receiving a substantial payment for his share of the net proceeds in addition to his equalization payment. The court further did not see any evidence suggesting the likelihood or risk that the Respondent would fail to pay periodic spousal support if that was ordered.

Conclusion

In light of the above, the court did not find that this was a case where lump sum spousal support was appropriate, nor did they find justification to warrant holding back the sale proceeds from the matrimonial home for the potential claim of prospective lump sum spousal support.