Introduction

The court in W.G. v. K.G. dealt with the complex issue of the effect of disability and disability payments on spousal support. While the husband’s income had increased since spousal support was initially ordered, so had the wife’s, who previously earned no income due to a disability. As a result, the court had to determine if these increases in income were considered a material change and if so, what the new support owing to the wife should be.

Background

The Applicant husband and Respondent wife were married for 13 years before separating in 2010. The parties eventually went to trial to determine the issues regarding their separation, including divorce, child support and spousal support.

Under the Order of Justice Conlan, the court found that the wife was entitled to both needs-based and compensatory spousal support. The wife’s income was determined to be zero because she had not been working due to a disability. As a result, the husband was required to pay spousal support at $1,891 per month for an indefinite duration.

However, Justice Conlan did note that the parties were to provide updated income disclosure to one another annually, and that the support amount would be reduced if the wife received CPP disability benefits. The court did not order a review date for the support, deciding that the amount would only be changed if there was a material change in circumstance.

Analysis

By 2024, both the parties’ income and circumstances had changed, prompting the husband to bring a motion to change his spousal support obligations.

For the husband, his income had increased by more than double, which would potentially increase his support payments. For the wife, she had begun receiving CPP disability benefits which would permit the husband to pay less to her in support.

As a result, the husband believed his spousal support should terminate as of 2022, while the wife argued there had been no material change in circumstance because her health had not changed.

The first issue the court had to determine is whether there had been a material change in circumstance that justified varying the spousal support order.

Justice Chown began analyzing this issue by looking to the parties’ incomes since the Order was made. Since 2015, the husband’s income had more than doubled. Although this was considered a material change, it did not militate in favour of terminating spousal support. Rather, it supported the wife’s alternative claim to increased support.

In comparison, the wife’s income had gone from zero to $23,311. Justice Chown considered this as persuasive evidence that the wife’s disability had changed. However, this change was for the better and allowed her to earn an income and was therefore enough to meet the definition of a change in circumstance.

The final change noted by the court was the fact that the parties’ children had aged out of child support. In 2021, the husband made his last child support payment. However, as of the motion date, the parties did not adjust spousal support from the with child formula to the without child formula.

Based on the above, Justice Chown determined there was a material change in circumstance. The next issues the court therefore had to address was the new quantum and duration of the support.

The court focused much of its analysis for this issue on the objectives of spousal support. Justice Chown acknowledged that this case was particularly difficult because it involved disability, and thus the ‘need’ for support was increasingly important.

Although the wife had begun to earn an income, it was still not enough to support herself. She could also lose her entitlement to the disability benefits in the future. Thus, while self-sufficiency is an important objective when considering support, it was not the overriding objective here. Along with her disability, the wife had also spent much of the marriage caring for the family instead of developing her career. She was economically disadvantaged by the marriage breakdown. However, Justice Chown considered her evidence to be subjective in nature and only moderately persuasive.

Based on the above, Justice Chown decided that the most appropriate order would be that spousal support to the wife would gradually decrease until eventually stopping in 2035.

Conclusion

In conclusion, the court decided against stopping spousal support payments for the wife altogether. However, the court recognized that the wife’s increase in income and improvement of health was a material change in circumstance warranting a variation. Thus, the court determined that in this case, the appropriate measure was to decrease the payments owed to the wife and set a date for the end of payments.