Spousal support refers to payments made by one spouse to the other spouse after the couple separates or gets a divorce. It is designed to help a spouse become financially self-sufficient after a relationship ends.
It is available to both married and common-law spouses in Ontario. However, it is not an automatic right – there are specific eligibility criteria and a claim must be made as part of a separation agreement negotiation or through court proceedings.
This article looks at whether the payment of spousal support stops if the recipient spouse starts a new relationship. We look at a recent case of the Court of Appeal for Ontario in which the paying spouse argued that his entire support obligation should shift to the recipient spouse’s new partner.
Not automatically, but a spouse can apply to vary the spousal support order.
Under section 17(4.1) of the Divorce Act, before the court varies a spousal support order, it needs to be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.
According to the Spousal Support Advisory Guidelines (Guidelines), remarriage does not mean automatic termination of spousal support, but support is often reduced or suspended or sometimes even terminated. Re-partnering requires case-by-case decision-making. The Guidelines give some useful examples including:
For example, after a short-to-medium first marriage, where the recipient spouse is younger and the support is non-compensatory and for transitional purposes, remarriage by the recipient is likely to result in termination of support. At the other extreme, where spousal support is being paid to an older spouse after a long traditional marriage, remarriage is unlikely to terminate spousal support, although the amount may be reduced.
In Politis v Politis, the parties were married for 25 years and separated in 2008. They have three adult children. The applicant was a full-time homemaker and caregiver to the parties’ children. In 2012, she was diagnosed with Lyme disease, affecting her ability to enter the workforce. The respondent is a civil engineer and earns income through his own professional corporation.
In 2015, the applicant sought interim spousal support. This was granted in the amount of $5,288 per month. At trial, the applicant sought increased support for an indefinite period. The respondent sought to terminate spousal support, arguing that his obligation should shift to the applicant’s new partner. The applicant had resided with her new partner for at least 8 years.
Justice Nakonechny of the Superior Court of Justice found that the applicant had established an entitlement to spousal support on both a compensatory and needs-based model. Her Honour found that the parties had a long marriage, the applicant was a stay-at-home parent, that she cannot be self-sufficient based on her own income or assets, and she had a difficult time re-entering the workforce.
Her Honour found that the applicant receives a net financial benefit from her new spouse, but that the economic loss from her marriage to the respondent had not been completely compensated by the support paid by the respondent to date. Her Honour concluded that the spousal support payments should be reduced based on her significantly decreased need given her new spouse’s ability to support her.
Justice Nakonechny ordered the respondent to pay $3,000 per month until October 2024, and thereafter $1,500 per month until October 2026, after which spousal support shall terminate. These amounts are lower than those contemplated by the income differential formula ranges in the Guidelines. The applicant appealed.
The applicant took issue with the trial judge’s departure from the ranges generated by the formulas in the Guidelines.
Justice of Appeal Tulloch explained that although they are the presumptive starting point for awarding support, they are not binding and there are complicating factors that need to be considered. His Honour pointed to the Guidelines, which explain that re-partnering is a circumstance that requires case-by-case negotiation and decision-making.
His Honour held that the trial judge’s explanation for deviating from the formula range was clear and justified. Specifically, the applicant had a lower needs-based entitlement because of the support provided by her new spouse. Given the partially compensatory nature of her entitlement, it was consistent with the Guidelines to require the payment of some support until 2026.
The applicant also drew the court’s attention to the “rule of 65” set out in the Guidelines, which says that indefinite support is appropriate where the length of cohabitation in years plus the recipient’s age at the date of separation is at least 65.
Justice of Appeal Tulloch rejected this argument, pointing to another part of the Guidelines that say that indefinite support does not necessarily mean that support is permanent – it just means that the duration has not been specified. The duration may be specified at a point in the future and support can be terminated if entitlement ceases.
His Honour dismissed the appeal, keeping the spousal support payments at the levels set by the trial judge.
NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters. We help our clients reach fair and efficient solutions to all of their separation and divorce issues, including spousal support and property division. Contact us online or at 416-481-5604 to book a consultation.