Divorcing Couple’s Disagreements On Spousal Support Leads Them To Court

Written on behalf of Arbesman Hamilton LLP

It’s understandable that after a long marriage, a couple’s financial situation and the division of working inside and outside of the home, can lead to inequality in income should they ever separate or divorce. A recent decision from the Ontario Superior Court of Justice saw the court untangling competing motions from a separated couple, with each looking for compensation from the other.

The family’s background and economic disparity

The couple were married for 19 years before separating in 2016. They lived together for two months after their separation, at which time the wife and their three children moved out of the matrimonial home and into one she purchased with a mortgage. The family home was mortgage free, and the husband continued to live in it. For a short period of time after the separation, the parties shared expenses related to the home (property tax and insurance) However, the husband had taken on sole responsibility of those expenses prior to the trial.

The husband and wife had significant disparities in their income. The wife earns six-figures and owns 49% of a pharmacy. The husband, meanwhile, works on his family farm and as a volunteer firefighter. He earns a five-figure income. One of the issues in dispute is his ownership stake in the family farm.

Prior to the trial, no child support, spousal support, or occupation rent have been paid to either party. At trial, the husband was asking for interim spousal support. The wife responded with a motion for interim child support, occupation rent, and an order for the sale of the matrimonial home.

Spousal support

The husband pointed to the differences in the parties’ incomes, as well as his depleted savings, which had gone from $43,700 to $6,870 since the separation. Claiming that the wife makes ten-times his income, he submitted he was entitled to $5,800 per month in interim spousal support. The wife, meanwhile, submitted that the husband’s lifestyle has been unaffected by the separation, and if he was entitled to any support at all, it should be at a lower rate ($2,394 per month).

The court determined the husband’s income to be about $28,000 annually. The wife argued that he also had cash income, though the court was not about to get into that matter at this time. The court found the wife’s annual income, which fluctuated from year to year, to be $264,000.

The court ordered the parties to calculate interim spousal support based on those income, and if they are unable to do so, they were instructed to make further submissions to the court in writing.

Child support

There are three children of the marriage. The oldest was born in 1999, with the others being born in 2001 and 2004 respectively. While the mother and father had joint custody of the children, they lived primarily with the mother. The mother had paid all section 7 expenses since she and the children moved into a new home. Based on this, the court ordered the father to pay $582 per month in interim child support for two months, with the amount being lowered to $428 per month afterwards, since the oldest of the children would no longer be a minor. The children also ordered the husband to pay $75 per month towards section 7 expenses, even though he argued the wife spent money on the children lavishly. The court determined that was an issue best left for a proper trial.

Occupation rent

The wife asked for $600 per month in occupational rent from the husband, arriving at that figure after dividing her monthly mortgage payments of  roughly in half. However, the parties could not agree on the value of the property, with the husband arguing it is worth $510,000 and the wife claiming it is worth $765,000. However, the parties had not prepared any evidence about household expenses since the separation, something the court pointed out they had plenty of time to do. The court dismissed the motion without prejudice, meaning the wife could seek leave to bring evidence towards the court, or request rent at a later time.

Matrimonial home

The wife’s motion to order the sale of the matrimonial home was countered by the husband’s evidence that the home is situated on a piece of property that was severed from his parents’ family farm, and as a result, has value to him beyond its monetary value. The wife also relied on the home as security when financing her share of the purchase price of the pharmacy she owns 49% of. This all brings to surface questions of net family property, and the court was not prepared to determine who might owe what to whom. As a result, this motion was dismissed.

At Arbesman Hamilton LLP, we understand the difficult situations faced by families going through divorce or separation.  Our experienced and professional team of family law lawyers have an extensive knowledge of the family law system within Canada and Ontario. We offer our clients exceptional service through by combining big firm results with a small firm relationship. Our lawyers are forward-thinking, adaptable, and innovative. We work to protect our clients’ rights in a way that is meant to avoid costly litigation, but we will fight tirelessly on their behalf when necessary. Please call us at 416-481-5604 or reach us online to see how we can assist you in your family law matter.