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An Ontario court recently considered whether or not it should award spousal support to a spouse who brought his claim many years after the parties’ separation.


The Parties’ Story

The parties married in May 1990, separated for about two years in the late 1990s, got back together and separated for a final time in August 2005.

Despite the separation, the husband continued to live in the matrimonial home and sleep on the couch until March 2016, when the wife was granted an order for exclusive possession of the home.

The husband brought a motion for temporary spousal support, some 13 years after the parties agree that they finally separated.

The wife brought a cross-motion for summary judgment, seeking to dismiss the husband’s claim for spousal support.


Summary Judgment

The court began by outlining that any party can bring a motion for summary judgment for a final order without going through a trial under rule 16(1) of the Family Law Rules (the FLR).

The court went on to explain that to be successful on a motion for summary judgment, the party making the motion must demonstrate that there is no genuine issue requiring a trial of the claim or defence. The phrase “no genuine issue for trial” means that a motion for summary judgment will be granted when the responding party cannot possibly succeed, even if they are granted the right to a full trial.

The court further indicated that in responding to the motion, the responding party must set out, in affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

The court explained that it will consider the evidence the parties have submitted in determining whether there is a genuine issue for trial. In addition, it can use its expanded powers under rule 16(6.1) of the FLR, which enables the court to weigh the evidence, evaluate the parties’ credibility, and draw any reasonable inference from the evidence.

The court outlined the process it must follow in applying these expanded summary judgment rules. It noted that:

  1. The court will first consider whether there is a genuine issue for trial based only on the evidence before the court. This decision is made without exercising the court’s expanded powers.

  2. But if there appears to be a genuine issue for trial, the court shall then determine whether the need for a trial can be avoided using those expanded powers. That decision is a discretionary one. But the court shall not exercise its discretion if doing so would be against the interests of justice.

  3. The exercise of the expanded powers will not be against the interests of justice if it would lead to a fair and just result; one that serves the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

Finally, in keeping with these principles, the court explained that it must ensure each case is dealt with justly. The court indicated that it achieves this by ensuring that the procedure is fair to all parties, saves time and expense, and that the case is dealt with in ways that are appropriate to its importance and complexity.

Spousal Support

The court outlined that the husband’s claim for spousal support fell under section 15.2(1) to (3) of the Divorce Act. It explained that in determining a claim for spousal support, the court must consider the means, needs and other circumstances of each spouse, including:

  • the length of time the spouses cohabited;
  • the functions performed by each spouse during cohabitation; and
  • any order, agreement or arrangement relating to the support of either spouse.

Furthermore, the court indicated that any spousal support order should:

  • recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  • apportion 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;
  • relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  • as much as possible, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The court went on to explain that while there is no limitation period, if a party delays in bringing their application for spousal support, the delay can defeat or diminish their claim. Furthermore, in considering a spousal support claim in the face of an extreme delay, the court must consider the party’s financial need arising after separation, the parties’ financial interdependence (both before and particularly after separation), and the length of the delay in making the claim.


The Court’s Decision

In dismissing the husband’s motion, the court found that there was no genuine issue for trial regarding the husband’s claim for spousal support. The court concluded that the husband was not entitled to spousal support for a number of reasons, including that:

  • The parties’ marriage was a medium term marriage.
  • The parties had been separated as long as they were married.
  • There was little financial intermingling between the parties, and they had separate bank accounts long before they separated.
  • There was nothing preventing the husband from making an earlier claim for spousal support.
  • If the wife had any non-compensatory spousal support obligations to the husband (which was not established on the evidence), the fact that she let the husband stay in the matrimonial home for 11 years post-separation covered any obligations she might have had.


Lessons Learned

If you are thinking about making a claim for spousal support, you should talk to a lawyer about your rights as soon as possible.

If you have questions about spousal support, or your separation or divorce in general, contact Gelman & Associates. Our lawyers – who are knowledgeable and compassionate, but also tough when necessary – 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.

With six offices 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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