In a recent Court of Appeal decision, the Court looked at whether an advanced payment by one spouse could be applied to his spousal support obligation, and whether the trial judge had correctly determined the spousal support duration.

What Happened?

The parties in question began living together in June 1993 and soon bought a house together. The husband had two children from a previous relationship and those children primarily lived with the parties. Between October 1996 – March 1997, the wife moved out of the matrimonial home and moved in with her mother. The couple later reconciled and were married in June 1999. They had a child together in 2001, and ultimately separated again on April 25th, 2010.

The wife began litigation in 2011. In October 2013, the court ordered that the husband pay the wife for interim disbursements totalling $75,000.00. At the time, it was said that this amount would be credited against an equalization payment, if it would be credited at all.

In April 2015, the parties resolved all outstanding issues relating to net family property, and this resolution was incorporated into a final order by the court. This order included an equalization payment of $399,000.00 from the husband to the wife, but made no mention of the $75,000.00 advance for the interim disbursements.

On appeal, the husband argued that the $75,000.00 advance should have been applied against his support obligation.

The wife, on cross-appeal, argued that the trial judge made a mistake with regards to determining the length of cohabitation.

The Decision

The Advance

The original trial judge had held that the husband’s $75,000.00 advance does not apply to the husband’s support obligations. The Court of Appeal agreed with the trial judge’s decision.

The Court of Appeal found that the terms of the initial order, which the husband had consented to, answers any questions about how the $75,000.00 was to be treated. It clearly indicated that if the husband were to receive any credit for the advance, it was to be credited against an equalization payment only, not his spousal support obligation. The equalization payment issues had all been resolved before this trial, and so the husband failed on his appeal.

The Length of Cohabitation

The wife’s cross-appeal on the length of cohabitation is another issue.

Per the Divorce Act, the length of cohabitation is a relevant factor when determining the duration of spousal support.. Based on this, the Court of Appeal went into an analysis of the trial judge’s decision and had found that the period of cohabitation had been between March 1997 – April 2010. He had not included the 3 years and 5 months the parties lived together before their short separation in October 1996.

The trial judge had held that the parties were taking steps to distance themselves from each other, including no longer living together, and that these were signs of separating. As such, the trial judge essentially restarted the period of cohabitation at the point when the parties moved back in together. Based on that, the wife argued that the trial judge should have included the entire period of cohabitation, starting in June 1993, but subtracted the 5 months they were temporarily living separate, from the total time.

The Court of Appeal agreed with the wife, and held that the trial judge had failed to consider the entire time of cohabitation, despite the evidence of the earlier cohabitation being presented to him.

The Court held that the parties had not formally separated for that brief 5-month period. There remained a possibility that they would resume cohabitation during this time, as the evidence had established that:

  • The period of separation was for 5 months;
  • The wife took only a suitcase of clothes; she left all furniture at the home;
  • The parties did not separate their finances;
  • The husband continued to support the wife, including using a credit card in his name;
  • The wife returned regularly to spend time with the children (who were not her biological children);
  • She may have gone on a few dates with another man, she did not get into another relationship;
  • In December 1996, the husband proposed to the wife with a ring in front of the children, but she told him “not yet”;
  • In February 1997, the couple were discussing marriage.

The Court of Appeal held that the appropriate period of cohabitation was 16 years and 5 months, instead of 13 years that the trial judge calculated.

The trial judge used the considerations under the Divorce Act and took into account the Spousal Support Advisory Guidelines (“SSAG”). The SSAG propose a period of 6.5-13 years of support from the date of separation for a period of cohabitation that is 13 years. The judge ordered 11 years.

With the correct period of cohabitation being 16 years and 5 months, the SSAG propose a minimum of 8.25 years of support, and a maximum of 16.5 years of support from the date of separation. The husband contended that even though a longer cohabitation period was found, the Court should defer to the trial judge’s decision. The duration of support depends on many considerations, not just the length of cohabitation, and the husband argued that the 11-year term of support is more appropriate.

The Court disagreed, and changed the spousal support duration to reflect the correct period cohabitation. The Court fixed the duration period as 14 years from the date of separation, and the wife would get support until March 31, 2014.

What We Learned

Cohabitation is an important consideration when determining the length of spousal support. While there are other factors that help to determine the actual duration of the support, the period of cohabitation is important in finding the appropriate range based on the SSAG. Even if there are breaks in the relationship, the total time, less the time spent apart, should be considered part of the period of cohabitation especially if those breaks do not reflect a permanent separation.

Spousal support is dependent on various factors, and it can often be a stressful process determining what spousal support you are entitled to. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients determine whether their spousal support settlement is fair and reflective of the facts. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.