In a recent Ontario Superior Court of Justice Decision, the court was asked to determine if and when it is appropriate to terminate an order for indefinite spousal support.

The Original Order And A Subsequent Motion

The couple involved in the case were married on May 9 1986 and separated after 18 years of marriage on July 22 2004. The husband was originally ordered to pay the wife $800 in monthly spousal support for an indefinite period of time. In January 2015, the husband filed a motion seeking to terminate his spousal support obligation. After an analysis of the evidence, the motion judge found that the wife’s health would not prevent her from working full-time, stating she “has had an opportunity to retrain and make herself employable and self-supporting.” The motion judge issued a step down order, which was designed to allow the wife to gradually return to the workforce over three years. The husband was ordered to pay $1,100 per month for the first year, $900 per month for the second year, and $800 per month for the third year.

Arguments At Appeal

The wife appealed the decision of the motion judge, arguing the judge had made an error in terminating indefinite spousal support in favour of a step down order. One of the wife’s arguments was that the motions judge failed consider that the couple had started living together three years prior to getting married, resulting in a relationship of 21 years rather than 18 years. However, the court found that neither party had raised this period of cohabitation during the motion trial. While it had initially been raised at a trial management conference ten years prior, it was not reasonable to expect the motions judge to consider it, since the “motions judge could not have committed a palpable and overriding error in respect of information that was never raised and not properly before the court on the motion.” The wife also argued the motion judge’s step down order was prospective in nature, meaning it was made on the assumption that she would be able to find full-time work within three years. The husband’s counsel argued that the Federal Support Advisory Guidelines (SSAGs) allows for such an order under s.7.5.2, which defines an indefinite support order as follows. “Under the Advisory Guidelines an order for indefinite support does not necessarily mean permanent support, and it certainly does not mean that support will continue indefinitely at the level set by the formula. Through the process of review and variation the amount of spousal support may be reduced, for example if the recipient’s income increases or if the recipient fails to make reasonable efforts to earn income and income is imputed.  Support may even be terminated if the basis of the entitlement disappears.”

Indefinite Orders Are Not Necessarily Permanent

The court found that since the circumstances showed the wife should be able to return to work, the motions judge did not commit an error in changing spousal support, and as such did not commit an error. The court dismissed the appeal and ordered the wife to pay $4,100 in costs. The court’s decision indicates that orders for indefinite spousal support may not actually mean that spousal support will continue on a permanent basis. Courts can consider a range of factors when considering whether such an order shall be changed. The lawyers of NULaw can help you if you have questions about spousal support, separation, or divorce. We can help you make informed decisions during what can be a very stressful time. Our pragmatic approach to family law keeps your best interests in mind while aiming to avoid high costs and emotional turmoil. Please call us at 416-481-5604 or contact us online to schedule a consultation today.

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