In a recent Superior Court of Justice decision, the court evaluated a case where the husband brought a motion to terminate spousal support that had been ongoing from 1996, while the wife asked that the motion be dismissed and wished to vary spousal support she was receiving.

What Happened?

The parties were married in September 1979. They moved around and settled in Toronto where the husband began working in the securities business. He did well, which prompted the wife to stop working because as she saw it, they had a good income and she had no desire to return to work following the birth of their children. Following the birth of their second child in 1990, they began to have difficulties and by 1994, the marriage was essentially over.

By the end of that year, the wife obtained an order that gave her interim exclusive possession of the matrimonial home and the children’s primary residence would be with her. From January 1995 onwards, the couple lived separately.

This divorce was heard and a judgment was rendered in 1996. The husband continued to do very well financially. The wife had not returned to work, although she had made efforts to improve her prospects. The youngest child initially lived with the wife and the eldest lived with the husband. Based on the fact that the wife did not have a job and she had one child with her, she was to receive spousal support of $4,750.00 a month, as well as other costs (including an equalization payment and proceeds of the house sale).

The husband later appealed the spousal support order, however, his appeal was denied and he paid the original ordered monthly amount from May 6th, 1996 until October 5th, 2016 when a judge ordered a stay in the payments until his requested motion to change could be heard. The husband has been paying support for approximately 22 years and had sole custody of the children since 2000 (when the court granted the wife supervised access only for 2 hours every 2 weeks).

Analysis

At the time they heard the husband’s motion for termination of spousal support, the court examined the financial situation of both parties. By then, both parties were 62 years of age. The children had long ago reached adulthood (they were aged 35 and 27, respectively).

The court noted that at the time of the original spousal support appeal in 1996, both parties had the same net worth and same education. While the husband made approximately $400,000 a year (compared to the$57,000 the wife was getting in support), the husband had significantly more expenses, and he had effectively raised their two children with no support from the wife (financial or otherwise).

In addition, the husband had gone deeply into debt in order to buy a house close to the children’s school and he often had cash flow problems. The wife, on the other hand, had been out of the workforce for quite some time even though the judgment made in 1996 had been designed to get her back into the workforce and encourage her to be self-sufficient.

The court evaluated the husband’s income over the five years leading to the hearing. He was making over a million dollars a year in that timeframe, however, he had been terminated without cause in 2016 due to corporate restructuring, and decided that at 61, it was time to retire.

The wife’s situation was very different. She lived in Saskatchewan and had used money from her divorce to buy a number of properties in Saskatchewan. She lived in one of those properties and rented out the others. She also maintained a rental property in Toronto that cost around $1,300 a month. She alleged that she kept the Toronto address in case she applied for jobs in Toronto.

The majority of her income came from the spousal support she received, and some work she did for an organic farmer. Her income from 2006-2016 was either below or just over the $57,000 she received annually in support payments. At the time of trial, she had substantial assets, however, her overall net worth was still significantly lower than that of the husband.

She was requesting $15,000 in spousal support a month.

The Decision

While the husband had a substantial net worth, he was about to retire and had considerable expenses.  The court found that the wife made no effort to re-enter the workforce, despite the fact that the judgment rendered in 1996 encouraged her to do so. The court did not accept the argument that she was too far behind because of taking time off during her marriage to raise their children. She was deemed to have made no effort, and therefore put herself in the position that she now requires 3 times the support that was ordered 21 years prior.

The court found that the failure of the wife to become self-sufficient is a material change, which means the court can address whether there should be a variance in the support order. The husband should not have to fund her chosen lifestyle regardless of his wealth if she has made no effort to support herself over the years following their separation. The court considered the objectives of s. 17(7) of the Divorce Act, which is the objective of varying a spousal support order,  and found that the spousal support payments should be terminated effective October 5th, 2016.

What We Learned

If you want to vary spousal support payments or terminate them all together, you have to show that there has been a material change to the circumstances of the parties. The issue often is whether there was a material change. A material change refers to a change in the condition, means, needs, or other circumstances of either former spouse since the order was put in place. The change must be a change that would have likely results in a different support order if those conditions existed at the time of the original order. A “non-happening of an anticipated event” can constitute a material change, which was the situation in this case. The court had anticipated that the wife would re-enter the workforce and be self-sufficient, however, that did not occur and she ended up requesting more support.

Some circumstances cannot be considered a material change. Retirement, changing of jobs, or getting married again are often foreseeable events and therefore are not often considered material. However, if you unexpectedly lose your job, are forced into early retirement, or you have gone bankrupt, then you might have a case. This makes the material change test difficult to meet and it is at the discretion of the court. Each case will be evaluated on their own facts and these facts will be subject to the material change test. The court does vary spousal support orders when they deem it is appropriate; it is not a rare occurrence.

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. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients with their spousal support needs. 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.