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An Ontario court recently considered a situation in which a husband claimed temporary non-compensatory spousal support from him former wife, whose income had increased following their separation.

What Happened?

The parties began living together in 1997, married in 2000, and ultimately separated in 2013. They had three children together, aged 16, 12, and 10 at the time the motion for support was heard.

In 2007 the parties had moved to Bracebridge with plans for the wife to work in management at a resort in Muskoka and for the husband to teach at a school there. The husband began to work as a supply teacher for the local school board in 2009.

Following the move to Bracebridge, the wife was extremely successful in her career, eventually being promoted to managing a large resort and earning over $100,000 at one point. Since the separation, all three children resided with the wife.

The husband struggled to find a permanent full-time position as a teacher, instead working in a series of supply teacher positions. His income averaged about $35,000 annually since the separation. He claimed he had to cash in portions of his RRSP to make ends meet, that he was unable to make any child support payments as he could not afford to, and that the wife owed him non-compensatory temporary spousal support.

The Husband’s Position

The husband acknowledged that, since the children resided primarily with the wife, he had an obligation to pay child support. He argued that this obligation should be reduced due to his income level, and that he should not be responsible for extraordinary expenses, such as the children’s sports activities.

With respect to the claim for non-compensatory spousal support, the husband argued that he had done his best to maintain employment and maximize his income, both during the marriage and after the separation, and had maintained several side gigs including landscaping work in the summer. He claimed that he needed spousal support to relieve him from the hardship that resulted from the sale of the matrimonial home and the hardship that would result if he had to pay child support.

The Wife’s Position

The wife believed that the husband had no entitlement to spousal support. While she acknowledged the discrepancy in their respective incomes, she argued that this fact did not in and of itself create an entitlement. Any hardship that the husband may have been facing was a result of his own failure to seek and obtain reasonable employment. The claim for interim spousal support should therefore be dismissed.

Disadvantage Due to Breakdown of Marriage

Since this was a motion for temporary spousal support, the husband did not have to prove entitlement to such support on a balance of probabilities, as he would otherwise have had to do at trial. He needed to show only a prima facie basis for entitlement (i.e. provide sufficient evidence that raised a presumption of entitlement to support).

The court noted that caselaw clearly establishes that an income discrepancy alone does not create a non-compensatory claim for support. In order to have such a claim, there must also be evidence that any disadvantage to a spouse arose from the breakdown of the marriage.

The court also considered the Supreme Court’s decision in an earlier case, in which the Supreme Court noted that a claim for non-compensatory spousal support may arise simply from “the fact that a person who formally enjoyed inter-spousal entitlement to support now finds herself or himself without it”.

Bearing this in mind, the court noted that in the year before the separation, the wife’s income was more than $70,000, whereas the husband’s income was less than half that amount. The parties had enjoyed a certain lifestyle based on their mutual pooling of resources, and the husband had found himself at an “economic disadvantage” following the breakdown of the marriage. He remained in the matrimonial home, but he could not pay the expenses and mortgage for the home on his own, and the parties therefore split these costs. The court noted that in sharing these costs, the wife was essentially paying some support to the husband.

The reason the husband brought the motion was due to a change in circumstances, since after the matrimonial home was sold, the wife stopped paying the husband. The court noted that the husband had worked several landscaping jobs and had also cashed in portions of his RRSP in order to meet his needs post-separation. In the court’s opinion, the husband would not have cashed in his retirement savings if there were sufficient job opportunities available to him. As such, the husband had established a prima facie case that he had suffered a disadvantage resulting from the breakdown of the marriage.

Amount of Spousal Support

Unsurprisingly, there was disagreement between the parties with respect to what income to use to calculate what spousal support the husband was entitled to. This resulted mostly from the increases in income that the wife enjoyed following the separation.

In 2012, the year before the parties separated, the wife was making $71,000 a year. In 2013, the year of the separation, she obtained a better position, earning $88,000, and that year she made over $100,000 due to overlapping work commitments.

The wife argued that 2013 was an outlier year and that the amount used to calculate her spousal support obligation should be the 2012 amount of $71,000.

The court agreed that 2013 had been a unique year for the wife in terms of income, but that it was unclear from the evidence exactly when she had started the job in which she earned significantly more than she had prior to separation. In addition, it seemed that the increased income was part of a “continuum” taking place since the parties moved to Bracebridge which had resulted in steadily increasing income.  Lastly, the court noted that in previous cases involving claims for non-compensatory spousal support, the Court of Appeal had used income earned in the year of separation even where there had been subsequent increases in income post-separation (as was the case here).

Based on this reasoning, the court used $80,000 as a baseline for calculating spousal support owing to the husband, an amount which represented a balance between income earned by the wife prior to separation and her regular income earned post-separation.

The court suggested that based on this income baseline and on the Spousal Support Guidelines, spousal support should be in the mid to lower range of support. As a result, the court ordered the wife to pay spousal support in the amount of $450 monthly. No retroactive support was ordered.

If you have questions about spousal support, contact Gelman & Associates to learn how our experienced family lawyers can help ensure the best possible arrangement for you following a separation or divorce. In addition to our firm’s separation and divorce handbook and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process. Our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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