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Should Support-Paying Ex-Husband Be Saddled with Ex-Wife’s Financial Irresponsibility?

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Should Support-Paying Ex-Husband Be Saddled with Ex-Wife’s Financial Irresponsibility?

The couple – both musicians in their 50s – separated after 23 years’ marriage. They had a wedding/corporate events band together for which the husband was the keyboardist and manager, while the wife was the lead singer. However, the wife had been diagnosed with Multiple Sclerosis during the marriage and her health was in significant decline. This had translated into them having fewer and fewer gigs for the band; this affected the net income for both of them, and by extension the calculation of support after their split.

Their matter came back before the court to determine how much spousal support the husband should pay, particularly in light of the wife’s ongoing illness-related need. While he conceded that he owed her spousal support, he took issue with the $1800 per month she was asking for, insisting that a figure of $700 was more appropriate in light of his income, her ability to earn at a reduced level, and the fact that she had dissipated a large chunk of her capital assets since the separation.

In particular, the court heard that shortly after they split up, the couple had come to an agreement: The wife was paid $371,000, with 2/3rd of that representing a buy-out of her interested in the matrimonial home, and the remainder being certain RRSP rollovers and the returns on certain investments the couple had made during the marriage. However, within two years after separation, she had already spent or squandered $170,000 of that money, mainly through gambling and making questionable financial decisions. These included her extending a $20,000 undocumented loan to a friend, buying a new car for that same friend to use on a regular basis, and losing $20,000 on the rash purchase of a co-op condo that – it turned out – had no elevator and did not permit dogs, both of which were deal-breakers for her.

The husband said that in light of the wife’s gambling and poor financial decision-making, both of which led to her squandering the capital she was supposed to use for day-to-day living, he should not be held accountable to pay higher support payments to compensate. At the least, her income for support purposes should include those amounts that she could have earned had she invested the $371,000 wisely.

The court considered these arguments, and pointed out that in some sense the wife’s mis-spent capital was irrelevant to how much support the husband should pay because no matter what the amount, it would be insufficient to meet her living expenses and she would have to keep encroaching on the capital regardless. Still, the court agreed that when determining the amount, the wife should be imputed to have earned a reasonable amount of investment income; the effect of her failure to invest should not now be visited on the husband.

In the end, the court determined that under the circumstances the wife should have been earning $2,000 per year through investments, plus another $6,000 from mentoring young musicians and other various pursuits that she could be earning even despite her medical limitations. After scrutinizing the husband’s income and assets in detail as well, the court arrived at a figure of $1,000 per month that he was ordered to pay her in spousal support.

For the full text of the decision, see:

Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984

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