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In a recent decision, an Ontario court considered the interesting question of when it may be appropriate to terminate a spouse’s obligation to pay spousal support.
The Parties’ Story
The parties were married in June 1967 and divorced in September 1995. They had two children, who were now independent adults.
In May 1998, the husband, who was then a lawyer practising as a sole practitioner, was ordered to pay spousal support to the wife in the amount of $3,000 per month. In August 2015, that order was varied and the husband was ordered to pay the wife $1,800 per month. A British Columbia order in June 2016 confirmed the August 2015 Ontario order.
In 2018, the husband began to suffer from dementia. The husband’s functioning deteriorated to the point where the Law Society of Ontario requested that he undergo a neuropsychological evaluation to determine his capacity to continue practising law. After an interview, psychological testing and a review of various documents, the expert concluded that the husband was at risk of exercising poor judgment in carrying out his duties as a lawyer. As a result of these findings, the husband signed an undertaking with the Law Society of Ontario, acknowledging that he was no longer capable of providing legal services in Ontario. He closed his legal practice on August 31, 2018. Since then, the husband’s income consisted solely of Canada Pension Plan and Old Age Security payments, totaling $751 per month.
The husband brought a motion to terminate spousal support retroactive to August 31, 2018. Because the husband brought his motion on a provisional basis, he also sought a temporary stay of enforcement pending the confirmation hearing of this matter.
The Relevant Legal Principles
Section 17 of the Divorce Act permits a court to vary spousal support where there has been a material change in the conditions, means, needs or other circumstances of either former spouse since the making of the first order. In the event a court finds that the conditions for a variation exist, it must then decide what order it should make in light of the change in circumstances.
The Court’s Decision
The court found that there had been a material change in the means and conditions of the husband and terminated his spousal support obligation. In coming to this conclusion, the court focused on the fact that the husband was unable to practice law and was suffering from dementia, and that the prognosis for his condition was poor (i.e., that it would continue to decline). It was also clear that the husband was no longer able to earn an income. The court noted that the husband’s income from government pension sources was nominal and insufficient to satisfy his spousal support obligation, and that his current means were insufficient to enable him to provide spousal support to the wife.
The court also granted the temporary stay of enforcement, as the husband had made out a prima facie case for variation. The court found that the husband had taken steps as quickly as he could after he could no longer practice law, and had continued to pay support both by way of garnishment and direct contribution to the Family Responsibility Office.
The court may terminate spousal support if there has been a material change in circumstances. Contact Gelman & Associates if you are involved in a separation or divorce and have questions about your rights. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.
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