Interim spousal support is intended to provide income to one spouse during divorce proceedings until there is a resolution at a trial. However, even if parties have waived their right to spousal support in a domestic contract, this will not necessarily restrict a party from claiming interim support. Courts have confirmed that in order to receive interim support in these circumstances, a claimant must show there is a triable issue on the enforceability of the waiver. At this stage of the proceedings, courts are not conducting a complete inquiry into the parties’ circumstances, but the claimant does need to show a strong case for entitlement to support.

Interim Support Order Can Provide Relief Pending Trial

Courts have explained that applications for interim support are not comprehensive reviews of the parties’ situation but they do provide a holding order until a final resolution. In Gordon v. Zuckerman, the judge remarked that the “purpose of interim relief is to provide the parties with reasonable arrangements to meet the needs and means of the parties until trial.” This was significant as interim spousal support is not necessarily restricted where there is a waiver of support in a domestic contract in cases where there is evidence on a motion for temporary support that there is a triable issue on the enforceability of the waiver. In Gordon, the judge stated that this is particularly true in circumstances where, in the event that the waiver is upheld at trial, the support recipient has assets that could “be used to compensate the payor for any overpayment of support.”

Recognizing this, the judge looked at the different ways that the enforceability of a contractual limitation on spousal support could be reviewed. The first was pursuant to the considerations set out in Miglin v. Miglin, which required looking at the circumstances in which an agreement is negotiated to ascertain whether there are grounds to discount it. This also requires consideration of the terms of the agreement to determine whether it substantially complies with the objectives of the Divorce Act, including the objectives of finality and certainty and the ability for parties to resolve their affairs. The second stage of the Miglin analysis considers whether the agreement continues to reflect the parties’ original intentions. A further route for challenging the validity of a spousal support waiver was under section 33(4)(a) of the Family Law Act. That section enables courts to set aside a waiver of support in a domestic contract if the enforcement of the contractual term would result in “unconscionable circumstances” that are “shocking to the conscience.”

Waiver of Support Is Not a Complete Restriction

In Gordon, the applicant argued there was a triable issue concerning the enforceability of the spousal support provisions in a marriage contract, either on the basis of Miglin or because the contract produced an unconscionable result, and therefore the contract should not bar an order for temporary spousal support. The applicant suggested that the parties’ anticipated that she would continue to work during the marriage and that she would have the capacity to support herself in case the marriage broke down. However, this did not happen due to a series of circumstances outside her control, such as her inability to speak French, the need to take care of children with special needs, and a cancer diagnosis that she received. She argued that collectively this hampered her ability to support herself.

Justice Monahan concluded that there was a triable issue on whether the limitation of support should be set aside, particularly on the basis of the second stage of the Miglin analysis. The respondent argued that the applicant consciously chose not to work during the marriage, but it was clear that the applicant spent a lot of time caring for the parties’ children due to their special needs, while her cancer diagnosis also affected her ability to work. Significantly, the respondent had been making voluntary payments to the applicant since their separation. This led to the judge’s comment that was an implicit acknowledgement that the applicant could not financially support herself. Justice Monahan also explained that temporary spousal support is only appropriate where an applicant can establish a prima facie entitlement to support. In this case, the applicant had a strong claim on both compensatory and non-compensatory grounds.

Claimant Must Show There is a Triable Issue

Interim orders arise from motions instead of trials, which means that they can be more prone to errors. However, in Sypher v. Sypher, the Court explained that interim orders are intended to cover a short period of time and that their purpose is “simply to provide a reasonably acceptable solution to a difficult problem until trial.” In Van der Ende v. Dool, the applicant brought a motion requesting an order that the respondent leave his property. The parties were unmarried but had been in a relationship for thirteen years. The respondent opposed the motion and stated that she could not afford alternate accommodation. However, she requested spousal support in order to enable her to find other accommodations. The parties had signed a cohabitation agreement which waived their rights to support and to the property of each other. On that basis, the applicant alleged the respondent was not entitled to support.

The judge looked at the decision in Gordon, which confirmed that a party’s request for interim spousal support will not be barred by provisions in a domestic contract waiving support if there is a triable issue over the enforceability of the contract. However, the support claimant has the onus of demonstrating that there is a triable issue. In this case, the judge noted that the parties needed an interim solution as the existing circumstances were challenging, given that the parties were residing in the same residence while there was a no contact order in place, and the applicant could not enter the house where the respondent stayed. Moreover, there were limited solutions as the respondent’s finances meant it would be difficult for her to secure alternative housing.

Court Considers Discrepancies in Parties’ Finances

Justice Chown found that there was a wide discrepancy in the parties’ financial circumstances. The respondent’s finances indicated that she would not be able to obtain other accommodation on her income alone. Although there was no evidence of market rent, the judge accepted that with her income and limited assets, she had a strong need for support. On the other hand, the applicant had a higher income and significant assets. The judge looked at whether the provision in the agreement may be set aside based on unconscionability, which required circumstances that are “shocking to the conscience”. In Scheel the Court indicated that this could arise from the circumstances surrounding the execution of the agreement, any hardship based on the agreement’s support provisions, and a party’s health and employability at the time of the hearing.

In this case, the parties’ relationship had lasted for thirteen years and the judge found that the respondent likely supported the applicant’s lifestyle for those years. There was a triable issue over whether the agreement was enforceable.

Courts May Order Interim Support When There is a Strong Entitlement

Courts generally strive to uphold domestic contracts on the basis that parties can deal with their affairs. However, courts are not prevented from awarding interim spousal support despite the presence of a waiver of support in an agreement if there is a triable issue on the enforceability of the agreement. Importantly, such support is intended as a “stop-gap” measure where there is a strong case of entitlement to support.

Contact the Divorce Lawyers at NULaw For Trusted Advice on Support Calculations and Imputing Income

Spousal support can often be a contentious issue in divorce litigation, and courts will consider several factors before making an order. The trusted family lawyers at NULaw provide clients with an assessment of their circumstances and regularly advise clients on their options and likelihood of their claims. This approach ensures that our clients are equipped with appropriate knowledge and are empowered when making important decisions. The divorce and separation lawyers at NULaw also handle other family law matters and disputes, including child support claims and parenting arrangements. We ensure that your rights remain protected so that you can continue to live comfortably as your circumstances change. To schedule a consultation with one of our lawyers, contact us online or call us at 416-481-5604.