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FactsEdit

The wife sought support on the basis of economic hardship created by the husband's unilateral termination of their long-term marriage. The parties were married for 19 years and separated when the husband announced the marriage was over and he had found someone else. The parties had no children. Prior to separation, the wife was earning $35,000/year and the husband was earning $111,700/year due to a promotion and relocation. After the separation the wife became clinically depressed and required time off work. The husband lived with the other woman, who chose to stay home, and her two boys. The wife lived alone and was one credit away from her BA. The trial judge found that the wife had suffered an economic disadvantage resulting directly from the husband's decision to exclude her from his enhanced career and the significant financial and personal benefits that directly flowed from his move to Toronto. The trial judge ordered the husband to pay the wife $2,600/month for the remainder of the year ending December 2006; $1,800/month for the calendar year 2007; and $1,050/month for the calendar year 2008. There was no award of support for 2009. However, the order provided that, after January 1, 2009, either party could seek a review of entitlement and/or quantum without the need to establish a material change in circumstances. The trial judge declined to make support retroactive, leaving the appellant with the $2,000 monthly interim support she was awarded for the period from October 1, 2004, until the end of trial. The wife appealed the decision.

IssueEdit

  1. Is the support awarded correct?

DecisionEdit

Appeal allowed.

ReasonsEdit

Justice Lang, writing for the court, first dealt with the entitlement of the wife to support:

  1. Length of cohabitation (s. 15.2(4)(a))
    • 19 year marriage is right on the cusp of a long-term marriage (20 years).
      • Rule of 65: if the marriage was greater than 5 years and age of party seeking support + length of marriage >= 65, then an indefinite order is presumed.
    • Due to the wife's employment position and youth, court agrees that an indefinite order would be out of place here.
  2. Functions performed during cohabitation (s. 15.2(4)(b))
    • There was no factual finding on this issue by the trial judge. Land finds that the wife had greater non-economic responsibilities during the marriage.
  3. Other circumstances (s. 15.2(4)(c)).
    • The husband's new family must be considered in context because this may decrease his ability to pay support. However, he voluntarily assumed significant responsibility for the second family when he knew (or should have known) of his pre-existing obligation to his first family. The new partner could work and she receives spousal support.

On balance, the wife is entitled to non-compensatory support. Her support for him for the few years when he was getting his BEd at the beginning of the relationship was made up through 19 years of marriage.

Considering the spousal support objectives in s. 15.2(6):

  1. Economic advantages or disadvantages from the marriage or its breakdown
    • She was disadvantaged by the breakdown as she was not able to share in his increased salary and had to give up her middle-class lifestyle.
  2. Economic hardship
    • No hardship to the wife as she is able to provide for her basic needs.
  3. Self-sufficiency
    • The court looked at the parties' present and past incomes, the standard of living during marriage, likely steps which could be taken to increase a party's means, the parties' likely post separation circumstances, and the duration of cohabitation.
    • Appellant cannot be self-sufficient in this context on her current income.

On quantum and duration of support, the wife's dependency on the marital standard of living was not so entrenched in the manner as it would have been in a traditional marriage with a gradually increased standard of living; the husband's income only increased during the final years of the marriage. On balance the court concludes that the wife is entitled to support for seven years beginning with the year of separation. The court utilizes a step-down order to encourage self-sufficiency: she is awarded $3,000/month for a three and a half year period followed by a further three and a half years at $1,500/month. This is restructured from the formula in the Guidelines due to the non-compensatory nature of the support.

Under Leskun, review orders should only be used when there is "genuine and material uncertainty at the time of the original trial". There was no real uncertainty here, so this was an error on the part of the trial judge.

RatioEdit

  • The Guidelines should be considered in context and applied in their entirety, including the specific consideration of any application variable and when necessary, restructuring.
  • The Guidelines apply to initial orders and variations.
  • A step down order (with gradual decreases in amount over time) recognize the need for the recipient spouse to achieve self-sufficiency.
  • Support orders must fall within the Guidelines range unless there is an applicable exception.
    • Any deviation from the Guidelines must have reasons given in order to provide consistency, predictability and certainty.
  • An indefinite order for support is appropriate after a long marriage, depending on the spouse's age and ability to attain self-sufficiency.

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