The Ontario Court of Appeal recently found that a two-year hiatus in spousal support granted to an ex-husband who was given time to “get himself on his feet” was an error in law and should be overturned.

What Happened?

The former couple in question were married for 28 years and had three children before separating in 2007. Their separation agreement provided for spousal support for the ex-wife and child support for the youngest child, who was 13 years old at the time. The support was initially based on the ex-husband’s annual income of $91,300. The parties had agreed that the ex-wife, who did not work outside of the home, would take reasonable steps to become self-sufficient. Spousal and child support were both to be reviewed every three years.

Various adjustments to the child and spousal support were made over the years, based on material changes in circumstances and negotiations between the ex-spouses. In 2015, the ex-husband brought a final motion seeking to terminate spousal and child support. Three months before the trial to address the motion, the ex-husband filed for bankruptcy. His driver’s license was suspended after he defaulted on support obligations.

The Original Decision

The trial judge found that the ex-wife was still entitled to spousal support due to ongoing health issues. However, he noted that the ex-husband was unable to work as a mechanic while his driver’s license was suspended, and that he had no income at the time of trial. He further noted that the ex-husband should “have an opportunity to ‘get himself on his feet’” so that he could find a job and pay the spousal support owing.

The trial judge terminated spousal support and gave the husband a two-year window in which to get his affairs in order. The trial judge further ordered that once this window of time had elapsed, the husband should pay significantly less support than what was provided for in the Spousal Support Guidelines (SSAG) based on a settlement that had been agreed to but not signed before trial, and speculation as to what the ex-husband might be able to earn once he returned to work.

The ex-wife appealed.

The Law on Support Orders

Support orders attract significant deference due to the importance of providing finality in family law litigation. An appellate court should only intervene in a support order where there has been:

  • a material error;
  • a serious misapprehension of the evidence; or
  • an error in law.

An appellate court should not intervene simply because it believes it would have made a different decision than the original trier of fact.

The Appeal Decision

The Court of Appeal found that the trial judge’s decision to grant the ex-husband a two-year hiatus in paying spousal support and the departure from the SSAG were based on errors of law and principle, and should be corrected on appeal.

The Court found that the SSAG are the presumptive starting point for awarding support, and any departure from these guidelines requires adequate explanation. Therefore, granting the ex-husband a two-year “support holiday” and awarding future support below the recommended level in the SSAG were both unjustified departures and therefore errors.

The Court of Appeal noted that the trial judge had not explained why he had made an order terminating support for two years, he simply noted that the ex-husband needed time to “get himself on his feet”, and also that the suspension of his license was the reason he could not work as a mechanic. He further referred to the ex-wife’s unwillingness to waive child support and her “relentless pursuit” of this support as a reason why the ex-husband lost his license and therefore his ability to work in his trade.

The Court of Appeal noted that even if the trial judge’s criticism of the ex-wife for refusing to terminate child support was warranted (and in the Court’s eyes, it was not), this criticism would not justify the complete elimination of the ex-husband’s obligation to provide spousal support. Therefore, it had been an error to halt the spousal support obligation for two years.

The Court of Appeal further noted that it had been an error to depart from the SSAG. In making his decision on this, the trial judge had suggested that he had been guided by the mediated settlement which had almost been reached between the parties but had not been signed. The Court of Appeal found that the trial judge should have made his decision as to the amount of spousal support owing based on the evidence before him at trial, not based on an unimplemented settlement agreement. This agreement could not be used to justify the interruption of spousal support or the fixing of support at a level below the SSAG range, despite the trial judge’s attempt to make an order that “incorporates as much as possible the spirit of the settlement” between these spouses.

The Court of Appeal provided its own spousal support order, bearing in mind the ex-husband’s income level at the time of appeal and the recommended SSAG amounts. The order did not include a “support holiday”.

Disputes over spousal support are difficult, emotional and can become quite contentious, requiring the assistance of a skilled and compassionate family law lawyer. Windsor family lawyer Jason P. Howie understands your frustrations and fears. With more than 25 years of experience guiding husbands and wives through the stress and strain of separationdivorce, and related issues including support, Jason has seen it all.  Jason is Certified as a Specialist in Family Law by the Law Society of Upper Canada and his experience and success practicing family law has earned him respect and distinction in the legal communities of Windsor and Essex County.  To speak with Jason about divorce and/or spousal support, call 519-973-1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.

 

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