In an interesting recent decision, the Ontario court considered whether the wife’s current unemployed status in Canada should impact her spousal support entitlement. The interesting “twist” was that she was unemployed partly because she now suffered from PTSD; this stemmed from her move to the Ukraine, where she endured the Russian invasion in early 2022. Part of her experienced trauma came from having to live in a bomb shelter for a few months, before returning to Canada.
The former spouses had signed a separation agreement in 2018, when they were both living and working in Canada. This agreement was turned into a final court order, and it provided that the husband would pay the wife $1,000 per month in spousal support for 10 years. It also stated that either of them could seek a change in spousal support if the threshold test of a “material change in circumstances” had been met.
Now in 2022, the wife came before the court to ask that her monthly spousal support should be increased to $2,700.
It turned out that soon after that 2018 agreement, the wife had moved to the Ukraine to help her elderly parents. She found a job there, working in a school that paid about CDN$4,000 per year (which along with the $1,000 in spousal support would have allowed her to make ends meet in that country).
However in January 2022 – on the brink of the Russian invasion of the Ukraine – she lost that job. And once the war broke out, she was simply unable to find work. She lived in a bomb shelter for a four months, but ultimately was able to return to Canada in May of 2022.
She said she now suffered from Post Traumatic Stress Disorder (PTSD), and was currently unable to hold down a job in Canada at the moment.
The wife relied on these compelling circumstances to argue that, with her PTSD and current unemployed status, this was tantamount to a present-day material change in circumstances. She asked for an increase to the $1,000 in support she was entitled to under the 2018 agreement. (And she refuted the husband’s argument that the “material change” actually took place when she moved to the Ukraine; she pointed out that she had been fully able to work in that country immediately after her move, at a job that allowed her to make ends meet).
Did PTSD from Living in a Ukrainian Bomb Shelter Amount to “Material Change”?
The court agreed that the wife was entitled to an increase in support.
There had indeed been a material change in February 2022, with the breakout of the war in Ukraine, and the wife’s inability to find employment. (And the court also held that the husband had not made the case that the wife’s move to the Ukraine around 2018 had been a material change at that time).
Simply put: The court said that the wife’s move to the Ukraine was unforeseeable at the time the agreement was signed, and this affected her current-day support entitlement. The court explained:
I find that the war in the Ukraine, which caused the [wife’s] inability to find work and suffer from PTSD is a material change in circumstance. The [wife] was employed when the agreement was signed, and the order obtained. She continued to be employed in Ukraine. She lost her job and has been unable to find employment due to circumstances outside of her control, being the outbreak of the war in the Ukraine, living in a bomb-shelter for four months and suffering from PTSD. Had the parties known at the time the agreement was signed that the [wife] would not be earning, or able to earn an income due to an outbreak of war, it would have resulted in different terms.
Framing its conclusions a different way, the court stated:
At the time the agreement was signed, and the order made, neither party could have contemplated that the [wife] would find herself in the middle of a war, living in a bomb shelter and suffering from PTSD. They could not have contemplated her being unable to secure employment. These new circumstances would likely have resulted in different terms had they been known when the order was made.
The wife was now back in Canada, but with wholly changed circumstances that materially affected her ability to meet her own financial needs in this country. She was entitled to an adjustment to reflect her current unemployment and inability to earn a reasonable income.
Based on the husband’s current income of about $96,000, the court ruled the wife should receive $2,700 per month. This was on the low end of the range under the Spousal Support Advisory Guidelines, and in the court’s view was eminently reasonable in the circumstances.
