It’s not uncommon for an individual who is obligated to pay spousal support to want to reduce or eliminate that obligation after he or she has entered into a new relationship. This is especially true if financial responsibility for that new, or “second” family arises.
Does a Second Family Impact Entitlement or Quantum of Support to a First Family?
Courts have recognized that obligations to a second family can be a relevant factor in considering entitlement to and quantum of support on a review, but it is a complex issue.
What’s the General Rule?
In a 2008 decision of the Ontario Court of Appeal (Fisher v. Fisher), the payor husband argued that the financial responsibility for his new family adversely affected his ability to support his former wife. Lang, J.A., writing for the court, stated:
[39] While courts generally recognize a “first-family-first” principle (which provides that a payor’s obligations to the first family take priority over any subsequent obligations, inevitably new obligations to a second family may decrease a payor’s ability to pay support for a first family.
[40] In each case, obligations toward second families must be considered in context. For example, where spouses with a child separate, and one remarries and produces another child, the obligations to the second child will affect support for the first family because the payor has an equal obligation to both children.
The Court in Fisher did not accept the husband’s argument, reasoning that he had voluntarily assumed significant responsibility for his second family knowing he had a pre-existing obligation to his first family. Further, there was no evidence that the husband’s obligations to his first family would have impoverished his second family.
Recent Cases Considering the “First-Family-First” Principle
In a 2015 decision of the Ontario Superior Court of Justice (Cotton v. Cotton), the husband was required to pay both child and spousal support to his ex-wife. He argued that the spousal support amount should be set at the low end of the range for two reasons:
- His marriage was a medium term marriage; and
- He must now also support his new family (which included his common-law wife and her two children).
The Court found that the husband had not introduced any evidence that the payment of child and spousal support to his first family would impoverish his second family. His new partner earned an income and received some child support from her ex, which meant that they did not have a significant impact on his financial situation. Further, there was evidence that the husband spent lavishly on his children (cosmetic surgery for his 15-year-old, a trip, pets, high-end clothing, etc.) The Court reasoned that he could not spend lavishly on his daughters and then claim there was no money left for his former spouse. The husband simply did not wish to contribute to the wife more than the minimum requirement, despite the fact that he had significant disposable income. He was ordered to pay spousal support in the mid-range amount.
In another recent case, (Dean v. Dean), the Court reiterated the “first-family-first” principle as outlined in Fisher, stressing that the obligation to a second family must be considered in context, and that a court must look at whether the obligations to the first family would impoverish the second family.
In Dean, the payor voluntarily made a series of decisions that contributed to his increased financial obligations:
- He adopted his new partner’s children and assumed financial responsibility for them;
- He assumed responsibility for a fourth non-biological child; and
- He incurred debt to purchased a larger home, upgrade cars and take vacations.
He did these things knowing he had a spousal support obligation and that his ex was seriously disabled. The Court held that the payor’s new partner could have found a better paying part-time job, and noted that he had been able to pay off some of his debts since his divorce. The Court concluded that the payor’s new family didn’t entitle him to reduce his support obligations to his former wife.
In some cases, such as Dickey v. Morrel, courts have ordered low to mid-level support in part based on the payor’s obligations to a second family. Support variations in favour of the payor tend to be more likely if the payor produces his own children in the second family.
The Bottom Line
The general rule is that “first families come first”. However, courts will look at second families in context and may conclude that a second family decreases the payor’s ability to support the first family. Critical questions are:
- Was there a voluntary assumption of an obligation by the payor?
- Is there a new child of the payor’s in the second family (the payor would have an equal obligation to children in the first family and the second family)?
- Is there other income available for the second family?
- Is there potential hardship to the new family?
For advice on variation of spousal support or any other family law matter, call Gelman & Associates at (416) 736-0200 or (844) 736-0200 or contact us online for a confidential initial consultation.
