Can a Brief Move Impact Spousal Support?

Written on behalf of Arbesman Hamilton LLP

One of the factors considered when calculating spousal support is how long a couple was together before their split. Normally, that might seem like a simple calculation, but, as the Ontario Court of Appeal’s decision in Whalen-Byrne v. Byrne shows, sometimes even a seemingly simple calculation can get complicated.

The Length of the Couple’s Relationship

The husband and wife in the case began living together in 1993 and separated in 2010, dates which they both agreed upon. As such, their relationship lasted for 17 years.

However, at trial, the judge ruled that they had only been in a relationship for 13 years. The judge’s finding was in light of a period from October 1996 to March 1997 when, prior to marriage, the wife moved out of the couple’s home and stayed with her mother. The couple eventually reconciled and got married. The trial judge ruled that spousal support should continue for 11 years past the couple’s separation.

The Trial Judge’s Decision

The trial judge looked to the Divorce Act, R.S.C. 1985, c. 3(2d Supp.) when making the original decision, writing:

It appears that following the Applicant moving in with her mother the parties continued to be open to the possibility of continuing a relationship; however, both parties were taking steps to put distance between themselves (ie. cessation of cohabitation and pursuit of relationships with other persons other than the other party). The most reasonable interpretation is that the parties intended to be separate from one another subject, at best, to the possibility of resumption of cohabitation. I find therefore that the period of cohabitation for consideration in respect of the Applicant’s claim for spousal support commences March 1997 and concludes with separation on April 10, 2010 for a period of thirteen years.

The wife’s position on appeal was that the trial judge made an error in restarting the calculation date of cohabitation to March 1997, and that the true period of cohabitation dated back to 1993.

The Court of Appeal’s Decision

The Court of Appeal agreed with the wife, stating the trial judge’s failure to account for the period of cohabitation before their brief separation was unreasonable. The Court of Appeal found that the couple did not formally separate in 1996, and at most, what occurred was an “interim separation.” The Court of Appeal considered the following factors when making its decision

  • The period when the parties lived apart was brief, only five months;
  • When (the wife) left she took only a suitcase of clothes, and did not remove any furniture from the house;
  • The parties did not separate their finances;
  • (The husband) continued to support (the wife), including allowing her to use a credit card in his name;
  • Although (the husband) remained in the house with his two children, (the wife) returned to the house regularly to spend time with the children;
  • Although (the wife) went on a few dates with another man, she was not involved in another relationship;
  •  In December 1996, (the husband) proposed marriage to (the wife), with a ring and in front of the children, to which she replied, “not yet”; and,
  • By February 1997 the parties were discussing marriage.

In its decision, the Court of Appeal adjusted the length of spousal support to 16 years and 5 months.

Arbesman Hamilton LLP takes a pragmatic approach to family law issues, including separation, divorce, and spousal support. We encourage our clients to see the big picture and focus on their end goal and what really matters to them. Contact us online or at 416-481-5604 if you are going through a separation or are contemplating one.