Although the 88-year-old man and 87-year-old woman had been living together for nearly 50 years, they never married.
When they separated in 2018, the wife succeeded in getting an order for interim spousal support of $1,137 per month, based on the fact that she had a lower income than the husband, and needed financial assistance.
However, the husband now came to court asking for a summary judgment order to completely deny the wife from getting any spousal support. He said she had “grossly repudiated” their relationship by having him put into a long-term care facility, and as a result he did not owe her any spousal support at all.
The court explained the basis for the husband’s argument:
The [husband] says that the [wife] grossly repudiated the parties common law relationship. He says that the relationship ended February 1, 2018 when the [husband] fell and broke his hip requiring hospitalization. The [husband] says he was not allowed to return to the apartment and that he was “kicked out” by the [wife]. He says that the [wife] lied to third party caregivers telling them that he had dementia and lacked capacity and then using the Power of Attorney for Personal Care that named her as his attorney, made him go reside in a “state run long-term care facility”.
In the husband’s view, in this scenario the wife should get nothing. He pointed to section 33(10) of the Family Law Act, says that when setting the amount of support, the court can consider a spouse’s “course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.”
The court reviewed the evidence. It confirmed most of the husband’s story – but noted several other important facts: The hospital doctors did not believe he could return safely home to live with the wife. Despite his claims that she had “forced” him into a long-term care facility, he was still living in the same one he had been admitted to, and still needed the level of day-to-day care that justified it. (And incidentally he had now barred his wife from visiting him there, and had appointed his daughter as attorney for both personal care and property). Also, the wife stated she never wanted to separate in the first place, and had herself recently moved into a retirement residence.
The court accepted her explanation for the decision to move the husband to long-term care:
The [wife] says that due to her age and the [husband’s] very serious health needs, she was unable to safely care for him and she was unwilling to do so anymore. There is evidence from both sides to support this fact. I find this to be a very simple and common-sense explanation of the circumstances for why the [husband] was placed into long term care.
Overall, the court found this was not so “unconscionable” as to amount to an obvious and gross repudiation of the relationship. The husband had not demonstrated a sufficient case to deprive the wife of spousal support on a summary basis; her claims could go forward for a trial.
In the meantime, however, the court reduced the monthly amount to $722 per month, using figures arrived at under the Spousal Support Advisory Guidelines. This was to arrive at an amount that better reflected the actual incomes and expenses of both parties at the time of the hearing.