Determining Interim Spousal Support
Couples going through divorce or separation may find themselves in court to determine the appropriate amounts of spousal support one person in the relationship may owe another. However, as was recently discussed in a case before the Ontario Superior Court of Justice, the issue of interim spousal support is another matter altogether and requires its own analysis by the courts.
The parties’ positions
The issue before the court was a motion brought by the wife in the relationship, who was seeking $2,500 per month in interim spousal support as well as a lump sum of $15,000 to future costs. The husband, meanwhile, sought to hold the wife’s spousal support to $300 per month, as per the terms of their marriage contract.
The couple was together for three years before moving in together in June, 2006. They were married on June 7, 2008 and separated on September 5, 2011. The wife suffers from a number of issues and ailments, including suicidal depression, eating disorders, sleeping disorders, diabetes, anxiety and the inability to focus. She was diagnosed with Post-Traumatic Stress Disorder (PTSD) in, which her doctor concluded in 2015 was caused by abuse from the husband. At trial the wife acknowledged that she was equally responsible for what happened to their marriage, saying she was hot tempered, argumentative and difficult.
The wife began to receive medical Employment Insurance in July 2012 and was granted a Canada Pension Plan disability pension at the time of the trial. However, she was no longer covered by the husband’s medical insurance. Her claim before the court was that spousal support was urgently required for her to get the medication she needs. While she received money from the sale of the couple’s matrimonial home, she argued she should not have to rely on that money for living expenses, as it is her safety net.
At the time of the trial the husband’s estimated income was $62,094. He claimed that despite his abusive behavior during the marriage, the wife was also responsible for abuse. Furthermore, it was the husband’s position that the wife’s health problems pre-dated their relationship and that she has a habit of wanting people to see her as disabled and “may feign ill health to get what she wants from others” and “may feign being helpless and powerless if needed.” The husband also submitted that the wife failed to submit claims to his insurer in 2015, and that if financial assistance was needed, she would have done so. Finally, the husband argued the wife had actually benefitted financially from the breakdown of the marriage through the proceeds of their home. He also purchased a car and made a $30,000 RRSP contribution for the wife prior to their marriage and supported her from 2007-2009, including through one year at university.
What does the law say?
Spousal support is covered by Section 15.2(2) of the Divorce Act (The D.A.). The section states that the court may make an order for interim support, either through monthly payments or lump sums.
The first considerations the court must make are in regards to the circumstances of each spouse, specifically:
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
The court went on to outline the objectives of an interim support order. They are as follows:(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The court then turned to Section 30, 33 and 34 of the Family Law Act (The F.L.A.) “Which set out the obligations of spouses to support themselves and each other, as well as the powers of the court to make a support order. Section 33 states:
(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 court then went on to explain the factors that determine the length and amount of interim spousal support, which are as follows:
(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;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(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,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(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,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
The court ultimately determined that the wife suffers from psychological issues, which impact her ability to maintain full time employment. While she was able to collect disability insurance as well as disability pension, she was not able to maintain the standard of living she was accustomed to prior to their separation. As a result, the court determined she was entitled to interim support, noting it was a stopgap measure meant to balance any short-term hardships resulting from the breakdown of the marriage. The court set the amount at $750 per month.
Jason P. Howie has over 25 years of experience in family law, leaving very few situations he has not worked through. Our calm, rational, approach to separation and divorce is aimed at helping our clients through a difficult time, ensuring their interests are protected while keeping an eye on what their objectives really are. Please call us at 519.973.1500 or contact us online to schedule a consultation today.