Despite Man’s Four-Year Delay and Significant Means, Woman Ordered to Pay Him Spousal Support Pending Trial
Recently we wrote about a case, Court Finds Spouse Not Disabled, Merely Afflicted by “Lack of Desire to Work”, in which the female partner in a common-law relationship had been paying post-separation spousal support to her male partner for more than 10 years. At the eventual trial, the court ordered that in light of the man’s ability to work and become self-sufficient he was no longer entitled to receive this support, despite his misguided claim that the woman had a “social, moral and ethical responsibility to support him for the rest of his life.”
In another Ontario decision, Sloan v. Weidner, the issue was whether the man in a common-law relationship was entitled to receive spousal support from the woman pending trial. He was also asking for an order that she should pay his disbursements, meaning advance costs to allow him to pursue the litigation.
By way of background: their relationship had lasted over 10 years, finally ending in 2009 when they separated. At that time, the man was 66, and the woman was 62. However, at the time of the request, the man owned two businesses which generated a combined revenue of $430,000 for 2009, and almost $360,000 for 2010; he had also just sold a home he owned for $285,000. Notwithstanding the business revenue, however, he declared only $17,000 in personal income for 2009, and about $20,000 for 2010.
The woman, on the other hand, was a successful business person in her own right. Despite a recent business reversal (arising from the loss of one of her key contracts), she had historically earned significantly more income than the man, and would continue to do so in the future. She also had considerably greater financial means and assets overall, most of which had been left to her by her late husband. In resisting his claim for support pending trial, the woman claimed that the man was never dependant on her, and suffered no economic disadvantage as a result of the relationship; indeed, he was in at least a good – if not better – position than before the relationship.
At the hearing before the court, the man’s success on his two claims was divided.
First, in considering the man’s interim support claim, the court confirmed that in light of the duration of the parties’ common-law relationship, the man was eligible to request that relief under the Ontario Family Law Act. It then turned to consider the merits.
The court noted that interim support was a short-term, “makeshift” remedy designed to ensure that a dependent person has sufficient means to maintain a reasonable lifestyle until trial. In this case, the parties ran separate businesses, maintained separate finances, and had separate bank accounts. They never intermingled their funds. However, during the relationship they did live together as spouses, travelled together, and functioned as a couple to the point where it could be said that the man developed an economic dependency upon her. On consideration of all the evidence, he had demonstrated sufficient need for at least some financial support until the hearing date; the woman was accordingly ordered to pay him $1,500 per month until trial.
In contrast, the man’s request for disbursements to be paid pending trial was disallowed. This was not one of the special or exceptional cases in which it was necessary to “level the playing field” by ordering his pre-trial expenses to be paid. The man had managed to participate in and pursue the litigation for almost four years, before he saw fit to come to court to ask for them. Indeed, his updated Financial Statements as filed with the court showed that his assets had increased modestly since the separation date, so there was nothing to indicate that he could not reasonably afford to pay them. More importantly, there was no evidence to suggest that the man would be deprived of the opportunity to proceed to trial, if the order for interim disbursements was not granted.
For the full text of the decision, see:
Sloan v. Weidner, 2012 ONSC 1859 http://canlii.ca/t/fqr5m
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.
