Redress Risk Management (post until May 31/19)
Family

Interim spousal support and child support

By Lisa Gelman

An Ontario court recently considered a case where the mother sought interim child support and spousal support from the father. In granting the mother’s motion, the court outlined the factors that it must take into account when making an interim order for support.

What happened?

The parties were married in January 2005 and separated in October 2014. They had three children, ages six, eight and 11. During their marriage, the parties lived in Toronto.

Since the date of separation, the father had resided in his Vancouver condominium (which he acquired prior to the marriage). The father also had very little contact with his three children.

On the other hand, since the date of separation, the mother continued to reside in the parties’ matrimonial home located in Toronto with the children.

The father, who states he was unemployed until November 2017, paid support to the mother intermittently since the date of separation. The mother is on social assistance.

The mother brought a motion seeking an order for interim child support and interim spousal support, among other relief.

The legislative framework for interim support

The court began by outlining that it may, in accordance with the Federal Child Support Guidelines (the Guidelines), make an interim order requiring a spouse to pay for the support of any or all children of the marriage pending the determination of an application for child support. The guiding principles of the Guidelines are as follows:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

The court explained that it can also make an interim order requiring a spouse to secure and/or pay a reasonable sum for the support of the other spouse, pending the determination of an application for spousal support. In making an order for spousal support, the court must take into consideration the condition, means, needs and other circumstances of each spouse, as well as the following objectives:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

In addition, the court noted that a previous Ontario decision outlined the following further principles that apply on a motion for interim spousal support:

  1. The applicant’s needs and the respondent’s ability to pay assume greater significance;
  2. The order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
  3. The court does not embark on an in-depth analysis of the parties’ circumstances, which is better left to trial. The court achieves rough justice at best;
  4. The courts should not unduly emphasize any one of the statutory considerations above others;
  5. The need to achieve economic self-sufficiency is often of less significance;
  6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines, unless exceptional circumstances indicate otherwise;
  7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
  8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

The court’s decision

The court considered the factors above and concluded that the mother was entitled to interim child support as well as interim spousal support on a needs basis. The court noted that the father had moved across the country and left the mother with three young children and that the mother was their sole caregiver. The court also remarked that the mother had no family in Toronto and therefore did not have anyone to rely on for babysitting or childcare services.

The court found that the mother earned $24,000 per year and imputed an income of $174,000 per year to the father. While the father asserted that his income had been $50,000 since November 2017, the court found that the father’s financial statement showed that he was worth $1,800,000. The court noted that the father failed to provide bank records and credit card records from the date of separation to corroborate the modest lifestyle he described in his sworn statements.

As a result, the court ordered the father to pay the mother interim child support in the amount of $3,048 per month, as well as interim spousal support in the amount of $2,003 per month.

Lessons learned

Bringing a motion for interim support can be a complicated matter. If you need help or have questions about your separation or divorce, contact Gelman & Associates. Our knowledgeable, results-oriented lawyers seek to empower clients to make informed decisions following the breakdown of a relationship. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process.

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