Redress Risk Management (post until May 31/19)

Factors to consider in spousal support applications

A recent Superior Court of Justice decision highlights the fact that even under well-intentioned circumstances, spousal support may not be awarded, says Oakville family lawyer and mediator Cathryn Paul.

In Munaki v. Munaki, 2014 ONSC 2998 (CanLII), a request for spousal support was dismissed by Justice James A. Ramsay after a woman looking to upgrade her education requested spousal support from her former partner. In aiming to become a registered practical nurse, the woman would be earning less, the decision reads.

“I do not think that the applicant was disadvantaged financially by the marriage or its breakdown,” writes Ramsay. “The parties both contributed their money and energy while they were together, and any compensation would be about equal either way. The husband’s ability to pay spousal support is not great, given his child support obligations.”

The decision continues: “The wife has present need, but it stems from the choice she has made to upgrade her education. It is a good choice, but it has a short-term cost. In all the circumstances, including the short duration of the relationship, I think it fair for her to bear the responsibility for her education and to reap its eventual rewards.”

The case raises the issue of when spousal support payment should be expected, says Paul, and how such a payment may be impacted by one party’s choices.

“In this case, there was no spousal support right after the separation. The wife earned $42,000 and the husband earned $60,000. However, the trigger now for the request for spousal support is the wife’s decision to return to school to upgrade her education, and therefore improve her long-term earning capacity,” she says.

“When somebody wants to go back to school to improve their income, there are reasonable expectations there,” Paul continues. “It’s tough, because these are the kinds of decisions that, if the family was still intact, the couple would make together based on what makes sense for the long run for the family. But as soon as the family separates, they’ve got competing needs.”

The first obligation in a separation scenario where children are involved is child support, says Paul.

“That comes first before spousal support is even a factor,” she says. “After the child support obligation is met, in some cases, there is not enough money left to fund a spousal support obligation. That appeared to be a factor for the judge in this case.

“It’s a very fact-based decision,” she says. “There are general legal principles, but all these cases turn on their individual facts. It’s hard for lawyers to advise clients on exactly what the outcome will be in these cases because it depends on how the evidence comes out, and how reasonable a judge thinks the parties’ circumstances are.”

As with many decisions in family law proceedings, it may be ideal to reach a solution out of court, because “the cost of litigating it isn’t going to be recouped,” says Paul.

Looking at Munaki, Paul says she wasn’t surprised by the decision.

Which factors are typically considered in spousal support cases?

"The first step is to decide whether there is entitlement to spousal support," says Paul. "That could be based on the roles taken by the parties during the marriage  – was it a traditional marriage where one person stayed at home with the kids and the other was out in the workforce? That would give rise to a compensatory basis for support, because the person who stayed at home for 20 years is never going to catch up financially to the other person. The judge stated in this case that neither party was disadvantaged by the marriage or its breakdown, so that is not a factor."

Alternatively, entitlement to spousal support may arise where there is a need for spousal support, says Paul, noting that was the issue considered in this case.

"If there is entitlement to spousal support, the Spousal Support Advisory Guidelines are consulted to determine how much should be paid and for how long," says Paul.

“The length of the marriage is a big factor, whether it was short-term or long-term. In this case, the marriage and cohabitation period totalled three years, so that would not generally give rise to long-term obligations," she says.

“Another factor is the differential in income, but the mere fact that there is a differential doesn’t mean there will be spousal support granted,” she adds. The guidelines also take into account the ages of the parties, any child support being paid or received and responsibility for care of the children of the marriage.

In cases of separation, spousal support tends to be a very emotional component for the parties to deal with, says Paul.

“Most people are fine with child support since it’s for the kids – it is what it is,” she says. “With spousal support, sometimes the recipient feels guilty for needing it, and sometimes they feel entitled to it. Sometimes the payor just feels totally aggrieved that they have to pay for somebody who has chosen to leave them.”

Paul describes spousal support as a “challenging issue” where it’s difficult to leave emotions at the door. It’s an issue she sees frequently in mediation, as parties often want to try resolving the issue outside of the litigation process, given the financial and emotional costs of litigation as well as the unpredictability of the outcome.

To Read More Cathryn Paul Posts Click Here
Lawyer Directory
BridgePoint Financial Services (post to 5.31.19)Toronto Lawyers Association (post to 6.30.19)MKD International (post until Sept. 30/19)Feldstein Family Law (post until May 31/19)Greystones Health Jasmine Daya & Co.Grey Wowk Spencer LLPNerland Lindsey