An Ontario court recently addressed how much financial disclosure a payor spouse (i.e. the spouse making spousal support payments) can obtain from a payee spouse’s new partner (i.e. the new partner of the spouse receiving spousal support) in a case where spousal support was an issue.

What Happened?

The parties separated in 2008 after a 25-year long marriage. They have three adult children. The ex-wife began living with a new common law partner in 2011. An application for spousal support was started in 2013.

Interim Order for Spousal Support

An interim decision about spousal support was made ordering the ex-husband to make spousal support payments to the ex-wife, noting that she had assumed the primary role of “homemaking and raising three children while her husband developed a successful practice as an engineer”. The order was made on the basis of the wife’s established need, including her lack of income following the separation.

The judge who issued the interim order did not accept the ex-husband’s argument that the ex-wife was not entitled to any support due to the contribution of her new partner, stating that:

  • any financial contributions made by a new partner did not address the ex-wife’s entitlement to compensatory support;
  • the law was not clear on whether contribution by a subsequent co-habiting partner was an automatic bar to a claim for spousal support from an ex.

The judge noted that the fact that the ex-wife lived with a new partner may affect the amount of support that she was entitled to, but did not affect her entitlement to that support in the first place.

The judge further noted that:

  • the ex-wife was “heavily dependent” on her new partner’s financial contributions to their relationship, mostly from his disability pension;
  • the new relationship was “stable and permanent” since they had been living together since 2011;
  • the new partner’s health issues were of concern, and spousal support should not be reduced by the entire amount of the new partner’s monthly contribution (ostensibly in case something happened to him).

The judge ultimately concluded that the ex-wife had established a need of just over $8,000 a month. The judge then allocated 50% of the approximately $5,000 the new partner was contributing monthly to support of the ex-wife, and concluded that the ex-husband was responsible for the remainder, ordering him to pay temporary monthly support of just over $5,200.

Extensive Financial Information Sought by Ex-Husband

In support of the ex-wife’s claim for continued support, the new partner voluntarily provided his tax returns for 2013-2016 (he had previously provided tax information for 2010-2012).

The ex-husband filed a motion seeking additional information, claiming that the new partner had sold an engineering firm in which he was a 50% owner to a huge engineering conglomerate in 2012. The ex-husband speculated that this sale netted the new partner a large sum of money since it had been reported in newspapers. He claimed that this provided the new partner with additional resources with which to support the ex-wife.

The Final Decision: No Further Financial Disclosure Necessary

The court did not accept these arguments, noting that the evidence established that the new partner had been on long-term disability leave since December 2014 and had significant health issues. He had provided evidence of the value of his long-term disability benefits and any other amounts that had added to his income since 2012. These other amounts constituted “non-recurring events arising from the sale”, had no impact on his monthly contribution to household expenses, and had instead been used to “reconstitute his savings”.

The court also noted that the new partner’s income and contribution to the ex-wife’s expenses had already been disclosed. While the ex-husband wished to obtain additional information to understand the new partner’s “full financial picture”, as a payor spouse he was not entitled to “extensive and intrusive information and disclosure about a new partner’s assets, net worth, savings and intimate financial affairs”.

The court found that:

There is a fundamental difference in the support obligations of a spouse on marriage breakdown and those of a common-law new partner.  At the present time the new partner has no legal support obligation to [the ex-wife]; his contributions to her expenses are voluntary. This court cannot compel him to deplete his capital to increase his contribution to [the ex-wife’s] expenses, as in the Colivas case. The [ex-husband] has not established that interference with the new partner’s privacy interests is necessary in the circumstances of the case.

The court also noted that timing was an important issue in this case. Here, the ex-husband had not yet questioned the ex-wife, and therefore had not established that additional disclosure of any financial information was not easily available by any other method. Such information must first be sought directly from a party to the litigation (in this case only the ex-wife and the ex-husband). It would be premature to make any disclosure order in the absence of such a request.

New Partners and Spousal Support

Section 14.7 of the Spousal Support Guidelines (SSAG) state that “re-partnering” is a relevant factor in spousal support, although this is evaluated on a case-by-case basis.

Previous cases have noted:

Under the current law the remarriage or repartnering of the support recipient does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated. Much depends upon whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.

In this case, the factual analysis of the specific circumstances led the court to conclude that there was no need to order additional disclosure.

Every case will be fact specific, and courts will consider the particular circumstances of each former couple when making decisions about everything from document disclosure, to the quantum (i.e. amount of spousal support), as well as other elements of family law disputes.

At Borden Family Law, we have been advising clients on separation, divorce, spousal support, and related matters for 17 years.  No matter what your circumstance, there is a very good chance we have seen it before, and have helped a client in a similar situation reach a successful resolution to their problem. We rely on our focused experience to provide exceptional guidance to clients seeking assistance following the breakdown of their relationship. We serve clients in Oshawa, Ajax, Pickering, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905-576-6090 or contact us online.