">
Separating or divorcing from another person is complicated, as it may take months or even years for all of the parties’ entanglements to be divided and accounted for. One of the issues that commonly arises during this process is that of spousal support. While the outcome of a divorce proceeding can see the higher-earning spouse paying the lower-earning spouse a certain sum of money each month, the question remains: what is the lower-income-earning spouse supposed to do while awaiting the outcome of the divorce proceedings? Moreover, can the higher-earning spouse purposefully drag the proceedings out to delay their support obligations?
This blog will explore the guiding legal principles regarding spousal support, referencing a recent Ontario Superior Court of Justice decision.
Parties Separate After 28 Years of Marriage
In the case of Nat v Jennings, Ms. Nat (the “applicant”) who was the former spouse of Mr. Jennings (the “respondent”) sought an order for interim spousal support. The parties married in 1991 and separated in 2019, and they had a 24-year-old daughter who lived independently. While the 55-year-old respondent had a reliable employment income of about $96,000 annually, the applicant worked part-time as a phlebotomist and ran her own business selling things online. She reported an annual income of $36,000 in 2022.
Following the parties’ separation in 2019, the applicant commenced an application seeking interim spousal support.
Understanding the Objectives of Spousal Support
In assessing her entitlement to interim spousal support, the Ontario Superior Court of Justice recognized that the objectives of spousal support are identical whether spousal support is ordered on an interim or final basis, noting that:
“Whether it is granted as a final order under s.15.2(1), or as an interim order under s. 15.2(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“the Divorce Act”), the legislated objectives of spousal support are the same:
• recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• apportioning 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;
• relieving any economic hardship of the spouses arising from the breakdown of the marriage; and
• in so far as practicable, promoting the economic self-sufficiency of each spouse within a reasonable period of time: see Divorce Act, 15.2(6).”
Moreover, “the goal of a temporary spousal support order is to maintain as much as possible the parties’ pre-separation lifestyle pending trial.”
The Court considered several factors in its analysis, including the fact that both parties were the higher income earners at some point during the relationship and the fact that the applicant had reportedly earned considerably less than the respondent in the years since filing for divorce. Ultimately, the Court concluded that an order for interim spousal support was appropriate in the circumstances.
How is Interim Spousal Support Assessed?
Having concluded that interim spousal support was owed to the applicant, the Court turned its attention to determining the proper amount to be awarded. Generally, courts utilize the federal Spousal Support Advisory Guidelines as a guideline when determining the amount of spousal support to award. However, as the Court pointed out in this case, the application of the Spousal Support Advisory Guidelines may be contentious when one or both parties’ income is unclear.
In this case, the applicant had repeatedly refused to provide the income disclosures required of her ever since she and the respondent parted ways. She had ignored all overtures from the respondent’s counsel wherein copies of financial transactions relating to her business were sought. She refused to provide such information to the Court in this matter. As such, the applicant contended that an additional $25,000 in annual income should be imputed to the applicant before ordering a spousal support award.
Court Orders Respondent to Pay Monthly Spousal Support Pending Applicant’s Financial Disclosure
The Court noted that the applicant’s “non-compliance with rules of disclosure are cause for concern.” Still, it concluded that “this motion is not the proper forum to punish her for her apparent lack of cooperation, and it does not disentitle her to interim spousal support.” To achieve the fairest resolution possible, the Court decided to average both of the parties’ earnings over the three previous years to determine an average annualized income. Those numbers were then used with the Spousal Support Advisory Guidelines, and the Court ordered the respondent to pay the applicant $2,064 per month in interim spousal support.
The Court also highlighted that once the applicant’s financial disclosure was made, if the numbers relied upon were lower than her actual income, any such overpayment would be credited to the spousal support payments of which the respondent was already in arrears. Conversely, if the numbers turned out to have been higher than what the applicant earned, this would result in a reduction of the arrears owed by the respondent.
Contact the Divorce Lawyers at Johnson Miller Family Lawyers for Trusted Advice on Support Claims
At Johnson Miller Family Lawyers, our skilled separation and divorce lawyers understand the importance of properly assessing and appropriately receiving all income to which you are entitled during a divorce. We work closely with our clients in order to understand their circumstances and provide them with tailored legal solutions to resolve family disputes and ensure they receive what they are entitled to. We work closely with clients to ensure they understand their financial entitlements following a marriage’s dissolution and have the financial support to move forward. To schedule a confidential consultation with one of our compassionate family lawyers, call us at 519.973.1500 or online.
