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Court weighs in on new partner's impact on spousal support claim

A recent Superior Court judgment helps redress the dearth of family law decisions involving the impact of a new partner on existing spousal support orders, Toronto family lawyer Erin Chaiton-Murray tells

Although it is relatively common for divorced spouses to enter new marriages or common-law partnerships while receiving spousal support, Chaiton-Murray, a partner with Fogelman Law, says courts have infrequently weighed in on the issue of what disclosure should be produced by a new partner.

However, she recently acted for a client whose former husband sought extensive financial disclosure from the woman’s new partner.  

“When there is a support obligation, in certain circumstances, the income and financial affairs of the new partner can be relevant,” Chaiton-Murray explains. “But there’s not a great deal of case law on the subject, so this case is useful in that it provides a good review of the relevant case law on disclosure from third parties.”

Chaiton-Murray’s client split from her former husband in 2008 following a 25-year marriage and moved in with her new common-law partner in 2011. In a 2015 interim order, a judge ordered the husband to pay her spousal support, after finding the marriage operated along traditional lines, with him pursuing a successful career while she focused on homemaking and raising the couple’s three children.  

The temporary level was set at just over $5,000 per month after the judge took into consideration the woman’s heavy reliance on her new partner’s disability pension contributions.

However, the husband sought more extensive disclosure from the new partner, particularly relating to a deal struck to sell his interest in an engineering business to a larger multinational firm in 2012, to help determine whether the wife’s needs were being met by her new partner.  

But the judge in the case denied the disclosure motion, finding that the husband “has not established that interference with the new partner’s privacy interests is necessary in the circumstances of the case,” partly because he had not yet questioned his ex-wife.

“On the questions of relevance to his case — the standard of living of [the wife] and the financial contribution of the new partner — the information must first be sought from the party, [the wife]. In the circumstances, given the high level of voluntary disclosure to date, it is premature to make any third party production order,” the judge wrote.

In addition, she ruled the court had no jurisdiction to order the new partner to swear a financial statement because he was not a party to the spousal support application.

“The primary financial issues relating to the new partner on a spousal support application are the contribution made to the spouse’s living expenses, and the standard of living in the new household. There is simply no need, nor ability, to compel, a new partner to produce a sworn financial statement, which would be highly invasive of the new partner’s personal privacy with respect to intimate financial information not relevant to the payor spouse’s litigation,” the judge’s decision reads.

Chaiton-Murray says the decision strikes a good balance between the need for disclosure and the new partner’s right to privacy.

“The information being sought by the former spouse was fairly intrusive,” she says. “If requests are overreaching and you’re unable to establish how they are relevant to the issue of support, they may not be granted.”

She says the co-operative approach adopted by her client’s new partner in providing his tax returns for a number of years, as well as disability insurance statements, may have helped sway the judge away from ordering more extensive disclosure.     

“I think it was an important factor that he had already provided a significant amount of information about his income,” Chaiton-Murray says.

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