How Courts Deal With Unexpected Spousal Support Needs After Separation
In the recent decision in Fyfe v. Jouppien, the Ontario Superior Court of Justice addressed an important issue: how to deal with a situation where both parties were self-sufficient at separation – i.e. there was no spousal support “need” – but where one of them later becomes disabled and unexpectedly requires spousal support afterwards. In the judge’s words, the case raised the issue of how courts “should balance the obligations that marriage entails with the natural wish on the part of spouses to move forward with their lives, free from the threat of unforeseen support obligations in the future.”
The fact scenario involved a couple who had started living together in 1981, got married five years later, and separated almost 20 years after that. At the time of separation, both parties were financially self-sufficient, though the husband had continued to pay for certain home expenses, while the wife paid for the children’s basic daily living expenses and those related to school.
However in 2007, the husband was diagnosed with cancer and had to rely on disability benefits. Faced with this unexpected financial need, he claimed against the wife for temporary spousal support.
In considering the matter, the court first reviewed the legislative framework for the granting of spousal support, which takes into consideration the “condition, means, needs and other circumstances of each spouse, including the length of their cohabitation, the function they each performed during that period, and any order, agreement or arrangement they had in connection with support. It also concluded that this was a situation involving “non-compensatory” support, meaning support that is designed address the reasonable needs of the spouse, rather than create a fair distribution between spouses on marriage breakdown (which is known as “compensatory” support).
Then, the court reviewed the evidence in this case: On the one hand, the husband did have a very limited income, was receiving significant help from his father (by living with him rent-free) and had about $85,000 in debt. However, the court concluded that the husband was not being forthright about the amounts he was receiving in disability benefits each month. Moreover, the husband had significant assets to his name, for example the spouses’ former matrimonial home and all of its contents (although the court found he had submitted figures that underestimated its value).
In contrast, the wife had very little: she had debts totally almost $61,000 arising mainly from the costs incurred since separation for the children’s daily living expenses. Simply put, she had virtually no ability to pay the support the husband was requesting. Moreover this was a situation where the husband’s disability had arisen post-separation, and had not been foreseeable at the time of separation.
The court reviewed a number of similar Ontario cases, and concluded that previous courts had taken a variety of approaches. The court wrote:
The foregoing review of some of the noteworthy cases dealing with the issue of need arising post separation since [the Supreme Court of Canada decision in] Bracklow reveals that the courts have been struggling with the issue, attempting to balance considerations respecting the expectations that arise within marriage with the concern that a spouse should not become an insurer for life for their former spouse’s future misfortune that is unconnected to the marriage or its breakdown.
The court concluded that in every case there were several factors and considerations at play, namely:
• Whether there is evidence to counter the presumption that the parties expected mutuality and interdependence from the marriage relationship;
• Whether the parties expected to continue to be “safety nets” for each other in the event that there was post-separation “need”, and if so, for how long;
• What has occurred during the passage of time, specifically how the parties have worked toward the objective of self-sufficiency;
• The presence or absence of a “clean break”; and
• The duration of the marriage.
The court also stated that situations involving an unexpected and intervening disability – as in this case – could be viewed with a “unique lens”.
Applying all of these principles and legal considerations, the court’s conclusion was essentially based in practicality: it found that the husband in this case had made out a case for entitlement to spousal support, but the wife simply did not have the means to pay it. His motion was accordingly dismissed.
Still, the judgment is important because the court gives full consideration to this kind of not-so-uncommon circumstance. For the full text of the decision, see:
Fyfe v. Jouppien, 2011 ONSC 5462 (CanLII) http://canlii.ca/t/fn3lq
