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Posts from the ‘SSAG’ Category

Spousal Support Advisory Guidelines – Are They a Package Deal?

Spousal Support Advisory Guidelines – Are They a Package Deal?

In a decision called Mason v. Mason, the Ontario Court of Appeal considered a narrow legal question: Is a judge entitled to use the Spousal Support Advisory (SSAGs) for partial purposes, but disregard it for others? And if the judge departs from using the SSAGs, must he or she give specific reasons for doing so?

The Masons were a husband and wife who had decided to divorce after a marriage spanning almost 20 years. During their relationship they had worked together to build a successful business, and after separating were able to settle all issues except the amount of spousal support that the husband should pay the wife in the circumstances. They went to court to have a trial judge determine that amount for them.

In his reasons, he had made a finding that the husband’s annual income was about $400,000, including certain corporate income that came from the husband buying out the wife from the business. He determined the wife’s income to be about $82,500.  After consulting the SSAGs to determine the proper range of support, he ordered the husband to pay about $9,000 per month.

The former spouses appealed, each claiming that the trial judge had incorrectly approached the income determinations, and had mis-used the SSAGs in doing so. They took issue with the income that had been attributed to them and with the resulting amount of the support award.

As many of you will know, for Canadian judges who are asked to determine spousal support upon the dissolution of marital relationship, the SSAGs set out a pre-determined – but non-mandatory – set of calculations.   As the name suggests, they are “advisory” in nature.

But in this case the Appeal Court found that the trial judge had used them incorrectly:   In the process of reviewing and setting the parties’ respective income, he had used the SSAGs to set the range of appropriate support, but then had abandoned using them when it came time to make the actual income determination.   The Appeal Court said:

As the trial judge was using the SSAGs to determine the amount of spousal support, it was incumbent on him to either rely on the Guideline provisions for determining income — or to explain why they should not apply.

It’s a thinly-sliced distinction, but means that despite being an advisory guide, once the trial judge had referred to the SSAGs in determining the spousal support range, he was required to at least explain why he considered them inapplicable in the Masons’ case.

With that said, the Appeal Court reiterated that the SSAGs “cannot be used as a software tool or formula” whereby the judge merely plugs in the income figures, obtains a range, and chooses the midpoint. They must be “considered in context and applied in their entirety”. The Appeal Court also pointed out that the trial judge had given too few reasons on how the specifics of the various dollar-amounts were calculated.

In the end, having identified errors in the trial judge’s income calculations for both parties, the Appeal Court declined to send the matter back to trial, and opted instead to make the income adjustments itself. It adjusted the husband’s income downward by about $200,000, and the wife’s upward by about $20,000. The spousal support component, payable by the husband to the wife, was adjusted to $1,500 per month.

For the full text of the decision, see

Mason v. Mason, 132 O.R. (3d) 641, 2016 ONCA 725 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Self-Reporting Your Income: How to Go Wrong

Canada Revenue Agency Warning Sign, A Canadian road warning sign with words Canada Revenue Agency with a sky background

Self-Reporting Your Income: How to Go Wrong

If you are a separated or divorced parent and also self-employed, then you likely know of your legal obligation to report your income so that any child support obligations (or entitlements) can be determined under the federal Child Support Guidelines (the “Guidelines”).

This can be more complicated than you may think. Because unlike those who receive a straight salary, if you earn your living through self-employment, or if you are paid through a corporation, then the calculation of your income can fluctuate greatly from year to year. It may also require some crystal ball-gazing, and be driven by numerous esoteric variables and discretionary business-decisions.

Not surprisingly, when family disputes involving one or more self-employed parents end up in court, the judge is authorized to closely scrutinize your self-reported income to fix the true amount. As part of this exercise, the Guidelines allow the judge to “add back” or impute income to your declared income in certain cases. These include situations where you:

• Are intentionally unemployed or under-employed;

• Divert income;

• Unreasonably under-use property that could be used to generate income;

• Fail to produce income information when legally required to do so;

• Deduct an unreasonably high amount of expenses from income (and this is not solely governed by whether the deduction is permitted under the Income Tax Act); and

• The beneficiary under a trust.
(The Guidelines also allow the court to impute income to you in certain defined tax scenarios).

Needless to say, there is a lot of gray-area in that list; for example, in a small corporation or single-person business you may have a lot of leeway in determining the amount of expenses that you deduct from income. Essentially, it is an “executive decision” in the colloquial sense, highly dependent on factors unique to your specific self-employment arrangement, and may vary from year to year as business needs and economic factors dictate.

In fact, the over-generous deduction of business expenses is the area where most self-employed parents trip up in reporting their total income for child support purposes. Here are just a few of the ways that you can go wrong in reporting income:

• By trying to deduct business expenses for what are actually recreational purposes. For example, in a case called Dunham v. Dunham the court added back 100 percent of the amount that the self-employed spouse had tried to claim for gasoline and oil expenses relating to a snowmobile and an airplane.

• By being over-generous in deducting expenses for items that have a dual purpose. For example, in A. (A.) v. A. (C.) the court disallowed certain capital cost allowance deduction in relation to a $60,000 truck and a computer, because they were used by the father (who was a private investigator) for both personal and business-related purposes).

• By hiding behind your accounting professional in justification of various decisions made in coming up with an income amount;

Note the following:

• Just because the deduction is allowed by the Canada Revenue Agency (CRA) does not mean it will be allowed for Guideline support and income-determination purposes.

• On the flip-side, if the deduction clearly disallowed by the CRA, then it will also be disallowed under the Guidelines when calculating income.

• The fact that a deduction may have survived a CRA audit does not mean that for child support purposes the deductions will not be added back by the court if warranted. Family courts have a great deal of discretion in this area.

For the full text of the decisions, see:

Dunham v. Dunham, 1998 CarswellOnt 4571 (Ont. Gen. Div.)

A. (A.) v. A. (C.), 2012 CarswellBC 3001 (B.C. S.C.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offerig pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Spousal Support Advisory Guidelines Are Now an Even Handier Tool

tool

Spousal Support Advisory Guidelines Are Now an Even Handier Tool

We have written before about the role of the Spousal Support Advisory Guidelines (SSAG), which are designed to provide guidance and inject some certainty into the court’s task of setting spousal support levels between former spouses in certain prescribed scenarios.

But since they are only “advisory” (rather than mandatory) in nature, questions sometimes arise as to when courts should use them, when they can or should deviate from them, and under what support-adjudicating circumstances can they be referred to by courts in the first place.

Assuming at the outset that the facts of a case potentially fall within the purview of scenarios that the SSAGs were drafted to cover, the answer to the last question – broadly stated – is “anytime”.

This was not always the case under Ontario law. When first introduced in draft form in 2008, they were arguably designed to apply only to initial (first-time) spousal support applications, but not to review situations were the spouses returned to court subsequently to have an existing order varied. This conclusion was fortified by a 2008 ruling by the Ontario Court of Appeal in a case called Fisher v. Fisher (And it should be noted that the Court drew these conclusions about the non-applicability of the SSAGs despite the fact that the issue was not really germane to the case before it).

Relying on that Court of Appeal ruling in Fisher, subsequent courts had been reluctant to apply the SSAGs to anything other than initial applications. However, that strict stance was loosened over the years, most notably in 2014 decision – ironically also by the Court of Appeal – in which the SSAG’s purview was expanded to review applications as well.

In Gray v. Gray, the Appeal Court was asked to consider whether an earlier trial judge had made a reversible error in failing to consider the SSAGs while deciding the wife’s review application. In doing so, it observed that Fisher had been decided at a time when the SSAGs were not yet in finalized form. Since then there had been a final version released which expressly addressed certain variation scenarios; there was also a body of case law that involved SSAG-guided review.

(For example, in one such case called Abernathy v. Peacock, the recipient mother had been initially awarded considerably less spousal support than that to which she was otherwise entitled, in order to leave the paying father more money with which to pay child support. When her spousal support entitlements later came up for review, the court concluded that the SSAGs were an appropriate benchmark, given that they were being used to adjust support amounts that may very well have been awarded in the first place).

Collectively, on both initial applications and review scenarios it was clear to the Appeal Court in Gray that the SSAGs were to be considered a “valuable tool for courts to use in assessing a reasonable amount of spousal support”, and that they should be “routinely consulted”.

Although the Court thus confirmed the SSAG’s applicability to review applications, it cautioned that they should not be applied “wholesale”. Rather – and since they still remain only advisory in nature – family courts were to first consider complicating factors such as situations where one or both divorced spouses have second families, or where the paying spouse has enjoyed a post-separation increase in income. In such cases, according to the Ontario Court of Appeal, a court “must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.”

What all of this means is that spouses who are contemplating separation and divorce can look to the SSAGs as a trustworthy starting point or “baseline” for discussions around spousal support amounts – no matter what the stage of the proceedings between them. Although the SSAG-set amounts are not carved in stone, they can provide a little bit of certainty to a sometimes-uncertain process.

For the full text of the decisions, see:

Fisher v. Fisher, 2008 ONCA 11 (CanLII)

Abernethy v. Peacock, 2012 ONCJ 145, [2012] O. J. No. 1203; 2012 ONCJ 145 (CanLII) add’l reasons 2013 ONSC 2045 (CanLII)

Gray v. Gray, 2014 ONCA 659 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Top 5 questions about spousal support in Ontario, Canada – video

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support — which is sometimes called “maintenance” or (especially in the U.S.) “alimony” — is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:

• the spouses have lived together in a “marriage-like relationship” for at least three years; and

• the claim for spousal support is made within one year of couples’ separation.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Can a “Misbehaving“ Spouse Lose Out on Support?

misbehave

Can a “Misbehaving“ Spouse Lose Out on Support?

In a recent Blog we commented on the decision in Boddington v. Boddington, which was effectively a case study on how not to ask a court for ongoing spousal support from your Ex, in situations where you have moved on to a relationship with a new person.
In reading the case, we were struck by an interesting little comment by the judge – and one that is probably wrong in law. It relates to the question of whether a former spouse’s “misconduct” – in this case an extramarital affair – essentially disentitles him or her to spousal support after-the-fact.

As readers will recall, the Boddington case involved a woman who was asking for ongoing spousal support from her former husband, despite the fact that she was now living with a new man. Even though she had had an affair with the man prior to marriage, she claimed that they were now “just friends” and had no sexual relationship – she was just living with him to help him out financially, she claimed. After rejecting the woman’s dishonest assertions as to the platonic, allegedly non-spousal relationship with the new partner, the court dismissing her claims for spousal support for other reasons.

In doing so, the court made a comment (at para. 11) of the judgment to the effect that the woman’s conduct was relevant to support because it amounted to an obvious and gross “repudiation of the relationship”. The judge’s exact words were these:

Of course, the law is clear that a payee is not disentitled to support merely because she has formed a new relationship. And the conduct of the parties is only relevant if it is so unconscionable as to constitute an obvious and gross repudiation of the relationship. While I would find the [wife’s] conduct in this case sufficient to meet that test, I do not have to go that far.

As it happens – and despites the judge’s hints to the contrary in Boddington – this is not the state of Family Law in Ontario.

In fact, courts will generally not characterize adulterous affairs, lying and similar dishonesty as an “obvious and gross repudiation of the relationship” to the point that a spouse becomes disentitled to support on that basis alone. Rather, spousal support entitlement generally arises as a consequence of the marriage and its breakdown, and (as I have discussed in many prior Blogs is calculated based on numerous factors, but misconduct is not one of them. In other words, an otherwise-deserving spouse does not become “disentitled” to financial support merely because they may have behaved immorally or unethically during the marriage.

For the full text of the decision, see:

Boddington v. Boddington, 2003 CarswellOnt 3914, [2003] O.J. No. 4008 (S.C.J.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Top 5 questions about spousal support in Ontario, Canada – video

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

In this video we review the more common questions about spousal support in Ontario, including:

1) What is spousal support?

Spousal support — which is sometimes called “alimony” — is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.

2) What is the legal basis for obtaining spousal support?

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

A court may order spousal support, and will set an amount and duration based on various factors that exist between the parties. The jurisdiction for a court to award spousal support comes from either the federal Divorce Act (as part of a divorce order), or from the Ontario Family Law Act.

3) What factors dictate the duration and amount of spousal support?

The determination of how much support a spouse should receive, and for how long, is a complex equation. In making a spousal support order courts consider several factors, including:

• the length of the entire relationship (including time living together before marriage);

• the financial circumstances of each spouse, both during the relationship and
after separation;

• the functions performed by each spouse during the relationship;

• the financial repercussions or detrimental financial effect on one or both spouses of caring for each other or for any children of the relationship; and

• each spouse’s ability to support him or herself.

In some cases one spouse may have suffered a financial loss or disadvantage as result of joint career and lifestyle decisions made during the marriage or relationship (for example the decision to move the family so that a spouse can take a new job, or that the mother will give up her career to stay home and raise the children). A disadvantaged spouse will be entitled to support to compensate him or her for that setback.

There may also be a limit on the duration of the support that one spouse receives from the other, as means of encouraging the recipient spouse to achieve post-separation financial independence as quickly as possible. Alternatively, the order may contain a built-in review mechanism.

Note that there are certain tax consequences relating to spousal support — both from the payor’s and the recipient’s perspective. In short — and provided it is paid pursuant to either a written separation agreement or a court order — it is considered “taxable income” in the hands of the spouse who receives it, and is deductible from the taxable income of the spouse who pays it. These tax ramifications are taken into account when determining the amount of support.

4) How does the spouse’s behaviour affect spousal support entitlement?

Generally speaking, the entitlement to spousal support is not dependent on the spouse’s pre- or post-separation behaviour, morality, or ethical conduct. In other words, a spouse who is otherwise entitled to spousal support after the dissolution of a marriage will not become disentitled because he or she was violent, or because it is later discovered that he or she had an extra-marital affair during the marriage.
Having said that, a court’s determination of the amount and duration of spousal support will hinge upon each party providing forthright, comprehensive financial disclosure to each other. If in making the determination the court feels that one spouse has withheld financial information (e.g. has failed to disclose a source of significant income), the court may impute income to the spouse and award the other spouse his or her support accordingly.

5) What happens if there is a change in circumstances?

As indicated above, the notion of one spouse receiving spousal support from the other is rooted in several concepts and principles, including:

1) the financial disadvantage or dependence that relationship gave rise to must be redressed post-separation; and

2) the ability of the paying spouse to fund the spousal support award must be taken into account.

The amount or duration of spousal support may have to be adjusted if there is significant change in the financial circumstances of either party. This change must be significant, and must not have been foreseen when the separation agreement or the court-ordered spousal support award was made.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

“If My Ex Starts Living with Someone Else, Can I Stop Paying Spousal Support?“

Couple who have fallen out over a disagreement sitting on a sofa

Couple who have fallen out over a disagreement sitting on a sofa

“If My Ex Starts Living with Someone Else, Can I Stop Paying Spousal Support?“

In this modern age of serial relationships, multiple marriages and various couplings and un-couplings, I often get asked how spousal support entitlement is affected when the support recipient goes on to form a new relationship. In other words, if you are the spouse paying support to your Ex, does that obligation change if he or she remarries or starts seeing someone else?

The question is not an easy one to answer, because the outcome is very situation-dependent. It really depends on the facts, and this requires an examination of numerous elements involving not only you and your Ex, but (to a lesser extent) the contribution of his or her new partner as well.

With that said, some guidance can be found in a recent Ontario case called Strifler v. Strifler where the judge listed some of the numerous factors and principles that family courts should consider in determining the significance of a new relationship on a former spouse’s support entitlement.

First of all, the court made the important point that there is no automatic cut-off: If you are paying support to your Ex, he or she will not become disentitled simply because they have a new relationship on the go. Instead, whether or not you can reduce or eliminate your spousal support obligation will depend on several factors, including:

• the duration and stability of your Ex’s new relationship

• the value to your Ex of any benefit that he or she receives by reason of that new relationship

• the existence of any legal obligation on the part of your Ex’s new partner to provide support

• the economic circumstances of your Ex’s new partner (and this comparison will sometimes be made in relation to your own economic situation, as the paying spouse)

From a practical perspective, your Ex may be called upon justify continued spousal support from you, despite his or her cohabiting with or remarrying someone else. In this regard the courts do tend to acknowledge the reality that the longer your Ex has been in the new relationship, the greater the obligation on his or her partner to provide financial support to your Ex as well.

Finally, it’s important to consider the purpose of support payments in the first place. For example, if the ordered support is designed to be compensatory – meaning that it is aimed at compensating your Ex for the historically-based disadvantage suffered as a result of your marriage and its breakdown – then his or her marriage to or cohabitation with someone else does not affect that entitlement one way or the other. Again, it really depends on the facts.

For the full text of the decision, see:

Strifler v. Strifler, 2014 ONCJ 69, 2014 CarswellOnt 1559 (Ont. S.C.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

“’Just Friends’ Don’t File Tax Returns Together — Ending Spousal Support for Those Who Have New Partners

friends

“’Just Friends’ Don’t File Tax Returns Together — Ending Spousal Support for Those Who Have New Partners

In a prior Blog we emphasized that a spouse’s obligation to support his or her Ex-spouse does not end automatically once the Ex remarries or begins living with another partner. However, any Family Court asked to consider whether it should end at that point will (among other things) examine the new relationship and take into account into account any benefits that the Ex receives on account of it.

The decision in Boddington v. Boddington is a handy case study on how a support-seeking Ex-wife, in her failed bid to keep receiving spousal support from her former husband, went wrong by trying to hide the extent of those new-relationship advantages and benefits.

The wife and husband had split after 16 years of marriage. Although she admitted to having an affair with a man named Wilson prior to separation – and indeed moved in with him immediately after – the wife claimed that they were now “just friends” and that their shared living arrangement was merely intended to help him out financially.

The court was asked to examine the facts in order to determine whether the wife was still entitled to spousal support from the husband, as she claimed. In short – the answer was “no”. Not only did the court refuse to award her ongoing spousal support from the husband, but it also cancelled any outstanding arrears he may have owed, and ordered the wife to pay costs.

First of all, the court concluded that the wife had no real ongoing marriage-related financial “need” that should be addressed through support from the former husband. But even leaving that aside, the main reason for dismissing the wife’s support claim was her evidence: the court concluded it was largely untruthful, and – more to the point – her claim that she and Wilson were “just friends” was obviously self-serving and false. The wife had been vague, defensive and evasive in the witness box, and had minimized Wilson’s relationship to her, as well as his financial status and contribution.

A more realistic version of the facts suggested that the wife and Wilson actually had more of a spousal relationship, one that the court said was “way beyond being ‘just friends’”. Only four months after separation, they opened a joint bank account together and the wife moved her cattle onto Wilson’s farm; he then transferred his land into her name as tenant-in-common. Most tellingly, on her income tax returns the wife declared a partnership interest in that farm, and identified Wilson as her “spouse”.
As the court, repeating the argument of the husband’s lawyer, said: “You do not file tax returns together if you are ‘just friends’”.

The court concluded: “All of the evidence only points to one conclusion: that the [wife] moved in with Mr. Wilson and lived with him as his spouse, sharing both his bed and his business, as well as title to his property.”

The wife’s claim for spousal support was accordingly dismissed.

For the full text of the decision, see:

Boddington v. Boddington, 2003 CarswellOnt 3914, [2003] O.J. No. 4008, [2004] W.D.F.L. 45, 126 A.C.W.S. (3d) 96, 44 R.F.L. (5th) 13

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

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Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

The question in Fiddler v. Fiddler was whether a husband should be allowed to pay his first wife little or no spousal support simply because he had voluntarily assumed financial responsibility for numerous children with his new partner – even though most of them were not biologically his.

The court’s answer was: “No”.

The husband and wife had been married for seven years and had a 13-year-old daughter when they split up. Almost immediately the husband moved in with another woman and they eventually had two children together. She also had four other children of her own from a prior relationship, and for whom she received no child support from the biological father. The six children all lived with the husband and the new partner in a remote Ontario location; the brood was increased to seven during the summer months only, when the husband’s 17-year-old child from yet another relationship joined them.

Although the husband the first wife agreed that he should pay child support for the daughter, they disagreed on the wife’s entitlement to spousal support. She therefore applied to the court for an order forcing the husband to pay on an interim basis pending their divorce trial.

The court examined the facts: Here, the wife had been the primary caregiver for their now-13-year-old daughter during the marriage, and had made sacrifices to allow the husband to advance his career. The husband earned about $110,000 per year; the wife earned about one-quarter of that: i.e. just under $30,000. She had advised the husband soon after their separation that she was intending to ask for spousal support, so it could not be said that he was caught off-guard.

More importantly, it was the husband’s own choice to take on the responsibility of a second family, including financial responsibility for numerous children that are not his own. His self-imposed obligation to support those children should not be a factor in considering whether the first wife should get support, nor should it be used as a reason to reduce the support to which she was otherwise entitled.

The court granted the wife’s request; however it made one concession to the husband’s situation in that – given the living expenses in his remote location and the travel costs of exercising access to their mutual child – he was allowed to pay on the low end of the range recommended by the SSAGs in all the circumstances.

For the full text of the decision, see:

Fiddler v. Fiddler (2014), 2014 ONSC 4068

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

He Said, She Said: Did Husband Ask Wife Not to Work During Marriage? Or Did Wife Refuse to Get a Job?

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He Said, She Said: Did Husband Ask Wife Not to Work During Marriage? Or Did Wife Refuse to Get a Job?

This was an interim spousal support claim by the wife, in a situation where she and the husband had lived together common law for a period spanning somewhere between 11 and 13 years. Both were now 65 years old.

In the context of determining the proper amount, the wife claimed that she had never worked outside the home during the marriage because the husband had asked her not to. The husband’s version was different, with the court explaining it this way:

[The wife] therefore says that as a result of her absence from the workforce, at [the husband’s] request, she was economically disadvantaged by the division of labour during their relationship. [The husband] denies this and says she refused to seek employment during their relationship in spite of his encouragement that she do so.

The court evidently accepted the wife’s version, because it awarded her the full support she was asking for.

In doing so, it considered that she was currently earning about $16,000 per year, while the husband was self-employed as a commercial freight broker. His exact income, however, was the subject of some speculation because he had not made full financial disclosure, despite the wife’s request. Also, while for the year 2013 he reported an income of only $20,000, the court noted that he leased two luxury vehicles, and travelled frequently. His banking activity and payment history on almost $185,000 owing on eight different credit cards also belied the reported income amount. Finally, on an immigration application for his cousin, he also claimed to be earning $240,000, which the court found was closer to the real amount. After making various adjustments the court ultimately settled on an imputed income to the husband of almost $135,000.

In the end, the court found that the wife had been economically disadvantaged during the marriage, and after taking into account other factors, ordered the husband to pay her over $3,700 per month, plus $14,500 in retroactive support that he should have been paying all along.

Tarnowski v. Bober (2014), 2014 CarswellOnt 15416, 2014 ONSC 6271, Price J. (Ont. S.C.J.) [Ontario]

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.