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Ex-wife Lives with Male “Friend”, But Never Pays Him Rent; Should Ex-Husband Still Pay Her Support?

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Ex-wife Lives with Male “Friend”, But Never Pays Him Rent; Should Ex-Husband Still Pay Her Support?

In a recent case called Colley v. Colley, Mr. Justice Quinn — who has an established history of writing interesting decisions  as judge for the Ontario Superior Court of Justice – expressed some healthy scepticism at the story by a wife who was now living with another man. In short, he did not buy her story that he was a “friend” from whom she was “renting” accommodation; he suspected she was living with him common law but still trying to maximize the spousal support she was getting from her ex-husband.

The parties had been married for 23 when they separated in 2000. Under their 2005 divorce, the husband agreed to pay the wife $3,100 per month in spousal support. The wife was earning about $29,000 as a dental assistant at the time.

After 12 years of paying, the husband applied to end his support obligations entirely, partly because his income had dropped by more than half after a catastrophic and debilitating stroke in 2011. He was on disability benefits, and would never return to work since half his body was paralysed and he was confined to a wheelchair needing 24-hour care and assistance.

But even aside from this, the husband also claimed his support obligations toward his 55-year old ex-wife should be reduced because she was now living with a male “friend”, and claimed she was his tenant. However, she never paid rent. In her court documents the wife purported to explain the situation this way:

The arrangement was that I would contribute $500.00 a month towards the housing expenses and I would pay all my personal expenses and for my food. I am indebted to him $6,000.005 for the back rent and he has told me quite bluntly this month that my living with him has become a financial drain and that he is tired of carrying me.

However, Justice Quinn was clearly not convinced. To this, he remarked:

[The wife] has alleged something in the nature of a landlord-tenant relationship with [the male “friend”]. Accordingly, she bears the burden of proving this fact, otherwise she must face the logical inference that, instead, it is a romantic or common-law relationship. She has not met that burden. The essence of a landlord-tenant relationship is the payment of rent. She is not paying rent.

The court said:

This means that [the wife], who, by this time, had been living with [the male “friend”] for 12 months, had not paid a penny toward “rent.” Am I really supposed to believe that this was some form of landlord-tenant relationship?

The court found instead that the wife was living common-law with the other man, and that it was her responsibility to provide evidence as to his income, so that the wife’s need for spousal support could be properly assessed in light of it. Without that information, the court was likely to draw unfavourable inferences.

The court also noted that it was not the sheer fact of her living with another man that potentially affected her spousal support entitlement; rather it was the financial impact of that re-partnering, and how it might affect her need for spousal support.

Having found that the husband’s reduced income was permanent and that it was a material change, the court granted his motion to vary; his support obligations were gradually reduced from about $800 per month down to about $500 per month over the next few years.

For the full text of the decision, see:

Colley v. Colley, 2013 ONSC 5666, [2013] O.J. No. 4055

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