How Re-Partnering Impacts Spousal Support AwardsAugust 19, 2021
In a recent Ontario Court of Appeal decision, the court reviewed the law and impact of re-partnering on spousal support awards.
Married Couple Separates After 25 Years
The husband and wife were married for 25 years before separating in 2008 and had three children. At the time of separation they were both 48 years old.
The wife has a high school education and was a full-time homemaker and caregiver to the couple’s children throughout the marriage. She had not been employed since their separation. Additionally, she had been diagnosed with Lyme disease in October 2012, affecting her ability to re-enter the workforce.
The husband is a civil engineer and earns income through his own professional corporation, which he has owned since 1992.
By the time their divorce case went to trial, the couple had been separated for eleven years and the wife had lived with her new partner for at least eight years. Their children were adults and independent.
Wife Granted Spousal Support
In 2015, the wife brought a motion for interim spousal support and the motion judge ordered the husband to pay spousal support in the amount of $5,288 per month on an interim basis, based on an imputed income of $200,500. In calculating the quantum of interim support, the motion judge took into consideration a monthly amount contributed by the wife’s new partner to her expenses.
At trial, the wife sought increased monthly spousal support for an indefinite period. She argued that the husband had underpaid support as his income was actually higher than the income imputed by the motion judge.
In response, the husband sought a termination of spousal support, and credit for overpayments made to the date of trial. His position was that the entirety of his support obligation should shift to the wife’s new partner.
Trial Judge Reviews Impact of Re-Partnering on Spousal Support
Among other issues at trial, the judge considered the effect of the wife’s cohabitation with her new partner on her entitlement to, as well as quantum and duration of, spousal support.
At the outset, the trial judge found that the wife had established an entitlement to spousal support on both a compensatory and needs-based model. Noting that a spouse’s re-partnering in a relationship of permanence post-separation does not disentitle them to spousal support, the judge observed that re-partnering does however impact quantum and duration. The trial judge further explained:
“Re-partnering has a greater impact on need-based support than on compensatory support. Re-partnering does not compensate for financial hardship experienced by a spouse as a result of the former marriage and its breakdown. But when a spouse who has financial need re-partners, the burden of meeting that need shifts over time from the former spouse to the new spouse. The longer the second relationship, the greater the obligation of the new spouse to meet that financial need.”
Wife’s Spousal Support Reduced Because of New Partner’s Contributions
Turning to the facts in front of her, the trial judge observed that the wife had been “economically intertwined” with her new partner for almost nine years. She further noted that the wife enjoyed a standard of living with her new partner that was comparable or better than the standard of living the couple had enjoyed during their marriage.
Nonetheless, the trial judge held:
“However, this standard of living is supported almost entirely by [the new partner]’s income and assets. The [wife] has not earned income since separation. She continues to carry large consumer debt and does not have any retirement savings. In my view, while a greater portion of the [wife]’s need should now be met by [the new partner], the economic loss from her marriage to the [husband] has not been completely compensated by the support paid by the [husband] to date.”
The trial judge found that the wife received a net financial benefit from her new partner in the amount of at least $3,100 per month. Thus, in determining the amount of support to be paid by the husband, the trial judge considered both the amount the husband would normally owe in spousal support as well as the benefit the wife received from her cohabitation with her new partner.
The trial judge concluded that spousal support payments should not be terminated as the wife had not yet been fully compensated for her economic loss. However, the trial judge reduced the amount owed based on her significantly decreased need given her new partner’s ability to support her. In the result, the husband was ordered to pay spousal support in the amount of $3,000 per month up to and including October 1, 2024. Commencing November 1, 2024, the husband was ordered to pay spousal support to the appellant in the amount of $1,500 per month up to and including October 1, 2026. Thereafter, the trial judge held that spousal support would terminate.
The wife appealed the decision.
Court of Appeal Reviews Law on Re-Partnering
The Court of Appeal began by reviewing what the Spousal Support Advisory Guidelines formula (“SSAGs”) says on the re-partnering of a spouse. Specifically, s. 14.7 states:
“Where the recipient remarries or re-partners with someone who has a similar or higher income than the previous spouse, eventually – faster or slower, depending upon the formula adopted – spousal support would be extinguished. We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision making.”
In addition, on the topic of re-partnering, the SSAGsstate at s. 13.8:
“Entitlement may then be revisited for any number of reasons – the recipient finding employment, the recipient’s remarriage or re-partnering, the payor’s retirement or loss of employment, etc. – and support may be terminated if entitlement has ceased.”
Finally, the court observed that s. 16 of the Spousal Support Advisory Guidelines: The Revised User’s Guide echoes the sentiment in instructing that re-partnering “does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated” and that this depends on “whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.”
Court of Appeal Dismisses Wife’s Appeal
After reviewing the trial judge’s reasoning in light of the above-mentioned principles, the court ultimately dismissed the wife’s appeal.
The court held that the trial judge’s decision was in line with the principles enunciated in the SSAGs and concluded:
“[R]e-partnering is highly relevant to what otherwise might be an insurmountable difficulty in becoming self-sufficient. Given the trial judge’s findings that the [wife]’s standard of living was now comparable to, or higher than what it was during the marriage, I see no error in this aspect of the trial judge’s reasons either.”
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.