Parties married in 1967 and had three children. The wife worked as a secretary before the marriage but stayed at home after the birth of their first child in 1969 and returned to work part time from 1981-1986. Parties separated in 1992. The husband was a teacher earning $56,000/year. Since the separation the wife worked at several part-time jobs but was unemployed at the time of trial. She says she has been looking for work but has been unsuccessful. All the children of the marriage were independent. The wife argued that the spousal support award should not be time limited (limited to two years) and the $900/month amount was too low. The husband appealed the support order and also argued that the trial judge had erred in ordering him to pay lump sum spousal support of $7,000.
- Should the support order be time limited?
Wife's appeal allowed on the time limit, and husband's appeal allowed on other grounds.
Bateman, writing for the court, concluded that while the level of support ordered seemed low, given the husband's annual income, it was limited by the husband's ability to pay. While there were concerns as to the adequacy of the maintenance, he could not say that it was so clearly wrong as to constitute reversible error.
However, the two year limit on the maintenance obligation was an error; there was no evidence from which the trial judge could conclude that the wife would have employment within two years. Placing a time limit overemphasized self-sufficiency and did not pay adequate regard to the other objectives set out in s. 17(7) of the Divorce Act. Absent a finding that the wife had certain future employment, had not made reasonable efforts up to the time of trial to obtain employment, or that she sought to pursue unrealistic retraining goals, and given the wife's age, the length of the marriage, her unsuccessful attempts to find employment and her time out of the workforce, this was not an appropriate case in which to order terminal maintenance. The trial judge failed to adequately consider the disparities in the parties' income, the wife's lengthy absence from the workforce attributable to her assumption of family responsibilities, the uncertainty of her re-entry and of her income upon re-entry, her age, the lifestyle enjoyed by the parties during the marriage, her lack of success in obtaining lasting employment after separation, and the fact that even upon gaining employment she may require supplemental maintenance to reach a reasonable standard of living.
- There is a presumption in favour of "indefinite orders".
- Time limited orders should normally only be placed when the marriage was short and the obligation is a limited one, or there is clear evidence that a dependent spouse will obtain employment within a known time frame, or where the dependent spouse is not making reasonable efforts to secure employment.
- In time-limited orders, the onus is on the recipient to justify extending the order.