Separations and divorces are stressful, and can sometimes take years to reach resolution. Since parties involved in a relationship may have different levels of income, courts can award temporary support orders aimed to help the couple maintain, as much as possible, their pre-separation lifestyle while things are finalized. A recent case before the Ontario Superior Court of Justice saw the court determining whether a request for $28,000 per month in temporary spousal support was reasonable.

The backstory

The couple were together for 24 years, and married for 17 before separating in August 2017. They had three children while together. The youngest was 17 years old at the time of the trial and was living with her father.

Both couples worked during their relationship. The mother has a degree in Mental Health and Addiction Counseling and is a licensed travel agent. However, she had lost her job prior to the trial and was not presently employed. That said, she conceded she was capable of earning up to $43,109 (which is what she earned in her last year of employment). The father is the owner of a number of Service Ontario outlets and is also a private mortgage lender. He showed income of $108,063 in 2017, and his two corporations had after-tax net incomes totaling over $610,000. The companies had retained earnings amounting to approximately $3,000,000.

Since the date of separation the father made two advanced equalization payments of $160,000, as well as other payments (the amounts of these were disputed, but were around $35,000). He had also been paying spousal support of $5,000 per month, which is what a payor earning an income of $250,000 would be obligated to pay.

An application for additional spousal support

The mother brought an application seeking an increase in temporary spousal support. Her financial statements showed monthly expenses amounting to $5,800, resulting in a $800 monthly shortfall. However, she argued that she should receive between $21,104 and $28,138, which is the range of support payable for a payor earning $718,426 and a recipient earning $43,109.

Meanwhile, the father took the stance that such a request was premature, contending that any decisions on spousal support should be delayed until his actual income and value of his business could be determined. Furthermore, he argued the $5,000 he was paying at the time was more than enough to meet the mother’s expenses, and that the couple lived on 25% of what was being requested prior to the separation.

The court’s analysis

The court was hesitant to rely exclusively on the Spousal Support Advisory Guidelines when setting child support, noting that doing so is not mandatory. The court listed three reasons why it did not find it appropriate to follow the guidelines in this instance.
The first is that the father’s income had yet to be determined. Some of his income came in the form of dividends from his companies, and some of the family’s personal expenses were paid by one of the corporations. Secondly, the court stated that the guidelines may not be useful for the father since they don’t apply to income over $350,000. Finally, the court found that awarding the mother with the amount requested would give her a radically different lifestyle than the one enjoyed by the couple prior to the separation. While the father said the family lived on $5,000-$6,000 per  month, that didn’t include expenses paid through the corporation. The father admitted it could have been as much as $20,000 per month.

The court found it more appropriate to look at the mother’s needs, writing,

“While I think it is appropriate to impute income to the applicant in the long term, perhaps even in the near future, I do not see it as appropriate at present, in light of this evidence.  My view, however, does not lead to a spousal support award of anything like the amount sought.  The applicant’s present needs of $5,800 per month are nearly entirely covered by the amount of support she is presently receiving, without any contribution from her.  She does not need much more, even if she is unable to work at the moment.”

The court found $8,500 per month was enough to cover the mother’s monthly costs and afford her the lifestyle she enjoyed prior to the separation.

The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients with their spousal support needs. If you are receiving spousal support and want to alter the support order, a lawyer can help you ensure that you have the best chance of success. Trying to vary spousal support can be stressful because some people rely heavily on the support they receive. 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. 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.