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In a recent Ontario decision, the court grappled with the interesting question of when it might be appropriate to terminate a prior order for indefinite spousal support.

What Happened?

The parties were married in May 1986 and separated in July 2004, resulting in an 18-year marriage. After separation, the husband was ordered to pay the wife spousal support in the amount of $800 per month for an indefinite period of time.

The husband subsequently sought to terminate his spousal support obligations and brought a motion to change. In January 2015, the motions judge found that the wife’s health issues would not prohibit her from engaging in full-time employment and that she had an opportunity to retrain and make herself “employable and self-supporting”.

Nonetheless, the motions judge still assisted the wife by issuing a three-year, step-down order. Specifically, the husband was ordered to pay the wife spousal support of $1,100 per months for the first year, $900 per month for the second year, and $800 per month for the third year.

The wife appealed the order.

The Court’s Decision

The wife posited that the motions judge erred in failing to consider that the parties commenced cohabiting in February 1983, which would have meant that their relationship lasted for 21 – not 18 – years. The court, however, disagreed. It noted that there was nothing indicating that the parties raised the issue of their premarital cohabitation during the motion so as to allow the motions judge to consider that point. Furthermore, while the wife referenced information raised in a trial management conference brief from ten years ago, the court found that this did not constitute evidence proffered on the motion. As a result, the court concluded that the motions judge could not have committed a palpable and overriding error in respect of information that was not properly before the judge on the motion.

The wife also claimed that the motions judge erred in terminating the indefinite support order by making a step-down order that was prospective in nature. However, the court concluded that the wife did not provide any authority to support her submission, apart from her counsel’s interpretation of the Spousal Support Advisory Guidelines (the Guidelines).

The court went on to explain that section 7.5.2 of the Guidelines leaves open the possibility that support may be terminated, as it provides that an order for “indefinite” support does not necessarily mean “permanent” support. Specifically, the Guidelines provide that the amount of spousal support may be reduced through the process of review and variation (for example, if the recipient’s income increases, or if the recipient fails to make reasonable efforts to earn income and income is imputed), and that support may even be terminated if the basis of the entitlement disappears.

In considering the application of the Guidelines to the facts of this case, the court concluded that it was open to the motions judge to find, as she did, that the husband’s spousal support obligation should terminate effective March 31, 2018. As a result, the court was satisfied that the motions judge did not commit a reviewable error and chose not to interfere with the decision.

Lessons Learned

The Court will consider myriad factors when considering whether or not to terminate an order for indefinite support. As the Court emphasized in this case, an order for indefinite support does not necessarily mean a party will receive support on a permanent basis.

If you have questions about your rights with respect to spousal support, or with respect to a separation or divorce generally, contact Gelman & Associates. Our goal is to provide you with the information and resources necessary to make informed decisions about your family law matters. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, we give all prospective clients a comprehensive family law kit during their initial consultation, which includes detailed information and resources to help individuals understand and navigate the separation and divorce process.

With six offices conveniently located throughout Aurora, Barrie, Downtown Toronto, Mississauga North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200, or contact us online for an initial consultation.

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