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Did Trial Judge Go Wrong By Granting Husband a “Support Holiday”?

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Did Trial Judge Go Wrong By Granting Husband a “Support Holiday”?

Did an Ontario trial judge make a mistake by granting a bankrupt husband a two-year “support holiday,” meaning a temporary break from paying spousal support, to allow him to “get back on his feet”?  And did the judge err further, by reducing his support obligations, when the break was over?

This was the question for the Ontario Court of Appeal in the case of McKinnon v. McKinnon.

The couple had been married for 28 years, before separating in 2007.  They had a separation agreement that provided for the husband to pay spousal support for the wife, and child support for the youngest of their three children.

The agreement could be reviewed every three years for both entitlement and amount of support.  It also stipulated that the wife, who did not work outside the home, would take reasonable steps to achieve self-sufficiency. Various adjustments had been made over the years, and the couple had negotiated certain changes as well.

However, things changed significantly in 2013 when the husband left his job, and assigned himself into bankruptcy.   The Family Responsibility Office suspended his licence for defaulting on his support obligations.  The wife, who had health issues, claimed she still needed spousal support since she had no income.

The couple appeared before a trial judge in 2015 to resolve the situation.  Although that judge confirmed the wife’s ongoing entitlement to support, he also decided to grant the husband a two-year “support holiday,” which would start on February 1, 2015 and end either two years later, or shortly after he got his license back (whoever came first).  The judge also ordered that once the support holiday was over, the husband should be allowed to pay significantly less spousal support than was recommended under the Spousal Support Advisory Guidelines (SSAGs), based on guesses as to what the husband might be able to earn as a mechanic at that later date.

The Court of Appeal considered these facts.  While noting that lower-court support orders should be given significant deference, it concluded that the trial judge had made a mistake here.   For one thing – and aside from the reference to letting the husband “get back on his feet” and noting he had no driver’s licence – the trial judge neglected to explain this order was made.

In fact, the ruling seemed to have been incorrectly guided by the terms of the mediated settlement that the couple had almost managed to reach, but which they never signed.  The trial judge even referred to the fact that he was making an order that “incorporates as much as possible the spirit of the settlement” between these spouses.

The Court of Appeal concluded this was also an error:  The terms of an unimplemented settlement agreement could not justify the trial judge’s decision to depart from SSAGs, or justify a two-year support holiday. By law, the judge could only consider an offer to settle, or draft minutes of settlement, in the context of costs – not in the context of being swaying on the substantive ruling.  The judge should have stuck to the evidence that was presented to him in court.

In the end, the Court of Appeal substituted its own spousal support order, in keeping with the SSAGs amounts and current income levels, but with no “support holiday” even despite the husband’s current job predicament.

For the full text of the decision, see:

McKinnon v. McKinnon

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