Last week we looked at a situation where despite retiring, a spousal support payer was not only required to continue to make spousal support payments, but the amount he was paying each month saw an increase. In this week’s blog, we continue to look at situations where spousal support may be varied. However, this week’s decision, from the Court of Appeal for Ontario, involves a separated couple where the wife has a new partner who contributes to her income, and therefore the court has to ask whether this should lead to a decrease in spousal support.
Husband and wife separate after 25 years
The parties to the issue separated in 2008 after 25 years of marriage. At the time of the separation, they were both 48 years old. At the time of the trial, the wife had been residing with her new partner for eight years.
At the original trial, it was held that the wife had demonstrated a compensatory and needs-based entitlement to spousal support. However, the trial judge ruled that since the wife’s new partner provided her with some financial support, and as such support should be reduced. Furthermore, the trial judge ordered that spousal support terminate entirely in October 2026.
Looking at the situations of the husband and wife
The wife has a high school education and worked full time out of the home, raising the parties’ now-grown children. She has not worked since the separation and claimed that a Lyme disease diagnosis affected her ability to find employment. The husband is a civil engineer and is the owner of his own professional corporation.
At trial, an imputed income of $200,500 was imputed to the husband, and imputed a spousal support payment of $5,288 per month, based on the wife’s new partner’s ability to contribute to her care. The wife appealed this decision, stating the trial judge set the amount too low, and that her income through spousal support was taken into consideration when it should not have been.
Was spousal support initially set too low?
While a spouse’s re-partnering does not disentitle someone to spousal support, it can certainly impact the quantum and duration of support. In this case, the trial judge had found that the wife enjoys a standard of living with her new partner that was equal to or better than what she experienced with the husband. However, the trial judge said that some support was still necessary because she had not been made whole of the economic loss she experienced in the marriage.
The trial judge had determined that the wife’s new partner contributed about $44,268 to her over the course of a year. With the husband’s income at $193,816, the spousal support formula provides recommendations in the range of $4,673-$6,185 per month,
The trial judge had determined that the husband make payments of $3,000 per month, to be reduced to $1,500 per month in 2024.
The court found that while the trial judge set a spousal support amount lower than what is recommended in the guidelines, it did so on the basis that she enjoys a similar or better standard of living than she did prior to the separation. The court said this deviation from the formula was not in error, but consistent with the law. As a result, the wife’s appeal was dismissed.
The first step when entering into divorce proceedings, especially where negotiations over spousal support are likely to occur, is to contact an experienced lawyer specializing in family law. To speak with an experienced Windsor divorce lawyer 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.