In a recent case, the Ontario Superior Court of Justice had to consider whether a wife had substantially complied with the terms that were attached to her receiving spousal support, or whether her lack of strict compliance meant that she should be cut off.
In Gallagher v. Gallagher, the husband and wife had married in 1994, had two children together, and separated in 2006 which lead to their 2008 divorce. Pursuant to a 2008 consent order, the husband had custody of the children but was obliged to pay the wife about $725 in monthly spousal support, which was to be paid directly to the wife’s landlord.
However, this support was contingent on the wife completing a minimum 30-day residential alcohol treatment program. Furthermore – and while orders of this nature are generally subject to review in circumstances where there has been a “material change of circumstances” – in this case the parties had stipulated that certain changes would NOT consider such a material change. Those situations included those where:
1) the wife earns less than $20,000 income in any given year; or
2) the wife lives with another man in a relationship similar to marriage for less than three months.
In other words, if the wife earned more than $20,000 per year or lived with another man for more than three months, the husband might have an argument that a “material change in circumstance” had occurred, and that spousal support should change or be terminated.
This is precisely what the husband argued before the court: after unilaterally ceasing to pay spousal support in May of 2012, he applied to the court to have that support obligation terminated. He based this assertion on the wife’s failure to adhere to one or more of the stipulations in the consent order. (The wife, meanwhile, claimed that she had to move out of the apartment paid for by the support, and was now homeless and living with her mother temporarily).
For one thing, the husband claimed that the wife had completed only 21 days of a treatment program, rather than the 30 days required of her. He also claimed that she was earning far more than $20,000 annually, and finally that for the past three months she had been living with a boyfriend, and was receiving financial help from him.
The court considered the circumstances. It held that the wife’s 21-day participation in the alcohol treatment program was “in the spirit” of the support order, and indeed was in sufficient compliance with it. Specifically: the residential program that she enrolled in was only 21 days in duration; she successfully completed it in full. There was no evidence led by either party that a 30-day program was even available at any institution, or whether it would have made a difference to the wife’s sobriety. Also, the purpose of this part of the spousal support order was to force the wife to confront her alcoholism, which she was demonstrably in the process of doing.
The court also pointed to the husband’s lack of timely complaint: there was no time limit for completing the program, but she had undergone it in 2009, and had supplied the husband with a certificate of completion shortly after. Now (in 2012) it was late-in-the-day for the husband to complain that she had not participated in a 30-day program. He had waived the right to insist on strict compliance.
Next, the court turned to the remainder of grounds on which the husband relied, but first cautioned that the husband seemed to have misapprehended the terms of the order. In particular, the terms did not comprise a list of what affirmatively constituted “material change”; rather, it was quite the opposite, in that it simply stipulated those events that did NOT meet that threshold. As such, the husband still had the burden of proving, on a balance of probabilities, that a material change did exist in the circumstances and that spousal support should come to an end.
In this case, the court concluded that he had not done so.
This is because there was no evidence to show that the wife was earning more than the $20,000 cap. First of all – and despite the fact that she was living with a boyfriend – there was no proof that she was financially dependent on him to the extent that the husband’s support obligation should be supplanted. Nor was it appropriate in this context to add non-taxable income sources such as OSAP student assistance and other special assistance to the wife’s total income.
Finally, as to the question of whether the wife had been living with another man for more than three months, the court found that the husband had indeed established this fact on the evidence, but that nonetheless he was not to be relieved of his spousal support obligation. The court wrote:
It appears to me that there is sufficient evidence which confirms that Ms. Gallagher has lived with several different partners since separation and the court order, and that these periods of cohabitation have exceeded three months. Certainly the last period of cohabitation was for a period of about eight months, and has only recently come to an end. Moreover, the evidence is that when Ms. Gallagher applied for her student loan, she considered herself “married” and she apparently was living with Russell Hector when she completed that application. There appear to be a number of clumsy attempts to get around the terms of the court order, including the “tenancy agreement” which the Respondent submitted as part of her material. … For the purposes of this motion to change, I find that the Applicant has proven, on the balance of probabilities, that Ms. Gallagher has cohabited with another man in a conjugal relationship for periods in excess of three months, and that the Applicant is not barred from bringing this application for that reason.
That being said, I am unable to find that there is a change in circumstances warranting a change in spousal support at this time. It appeared that in each of the cases that we know about, the relationships that the Respondent had were comparatively short-lived … There is no evidence of a relationship of dependency between Ms. Gallagher and the individuals with whom she resided sufficient to displace the spousal support obligation of the Applicant.
In other words, the court found that despite the wife’s short -term alliances, none were of the character that the husband’s spousal support obligations should be eliminated.
Accordingly, the court dismissed the husband’s termination application.
For the full text of the decision, see:
Gallagher v. Gallagher, 2012 ONSC 6321 http://canlii.ca/t/ftr4z
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