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Spousal support axed after lack of self-sufficiency

A recent Ontario Superior Court decision terminating a woman’s spousal support after more than two decades is a reminder that there is an obligation to attempt to become self-sufficient, Toronto family lawyer Katelynn Schoop tells AdvocateDaily.com.

There are provisions in the Divorce Act that promote the economic self-sufficiency of each spouse within a reasonable period of time, says Schoop, an associate with Stanchieri Family Law.

“A spouse who earns all or most of the family’s income may have to pay spousal support to assist the other until they become more economically independent. However, there is an obligation on the spouse who earns less or no income to take steps to become self-sufficient.”

In a recent decision, the ex-husband, who is now in his 60s, wanted to retire and applied to the court to end the $57,000 in annual spousal support he has been giving his former wife for the past 22 years. The woman requested that her support instead be tripled to $180,000 per year.

The judge rejected the woman’s claim and terminated support payments, stating: “I am mindful that this order may create economic hardship for [the woman], because she does not appear to be self-sufficient at present. However, the question I must address in this case is whether she remains entitled to spousal support from her former spouse.

"In my view, having regard to the provisions of the Divorce Act, it is clear that she is not.”

Schoop, who was not involved in the matter and comments generally, says a number of factors determine the duration and amount of spousal support, including age at the time of separation and who took care of the home and children.

“For spouses who have been in long-term marriages and haven't been working because they were taking care of their children, for example, there are legitimate obstacles to re-entering the workforce,” she says. “They may need to upgrade qualifications or even pursue a new career path.”

There are other factors at play that may delay a person’s ability to support themselves, Schoop notes.

“In a tough job market, you could be competing with new graduates for the same roles," she adds.

However, Schoop says some people have very little interest in becoming self-sufficient or contributing to their own support.

The judge noted the woman never returned to her accounting position or obtained any type of employment that would be reasonably comparable.

“This was because she never made any attempt to do so. She argued that, due to the marriage, she was out of the workforce for ten years at the point of separation and was never able to catch up. In my view, however, she made no effort to catch up," the judge wrote. 

“If she had made an effort to ‘re-enter the workforce in a position compatible with her education and past employment history’ and had failed, that might support her argument. However, after having made no effort to ‘return to the workplace and move … towards self-sufficiency,’ it is not tenable to argue that her inability to support herself is the result of her marriage or its breakdown, and that she still requires spousal support – in fact, that she requires it at a level more than three times what had been ordered 21 years previously,” the decision stated.

The judge found there was little evidence of any job searches or focused effort to gain meaningful employment or something that would eventually lead to self-sufficiency.

“She did take a variety of computer courses in 2001 to 2015 but she took these more for personal reasons, rather than to find a job,” the judge stated.

“She put into evidence a letter she had written in support of a job application in 2015. She could not recall what the job was for. The letter is so poorly written with so many grammatical errors that it could perhaps be seen as a deliberate effort not to obtain the job for which it was submitted,” the ruling continues.

The woman chose to buy and rent residential properties in rural Saskatchewan and to become an organic farmer. 

“While she purchased a commercial property in or around 2009, it was not and remains in poor conditions such that it cannot be rented out,” the judge said, adding that while being a landlord and farmer involves work, it has not been lucrative for the woman.

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