Spouses can be separated even if they continue to live under the same roof. But courts have not always been clear whether child support and spousal support should be paid if the parties continue to live together. For instance, the Federal Child Support Guidelines assume that the support payor lives separately from the children. If the parties maintain their pre-separation living arrangements, some courts have found that the recipient has received equivalent funds in lieu of support payments. Nevertheless, courts must always be satisfied that there are adequate financial arrangements in place to meet the children’s needs that are not inconsistent with the Guidelines.

Respondent Disputes That Applicant Needs Financial Support

In Maerzke-Crupi v. Crupi, the parties were married but separated, and for nearly two years continued to live in the jointly owned matrimonial home. The applicant brought a motion seeking both child and spousal support. She proposed ranges for the respondent to pay child support of $3,352 to $5,333 a month, and spousal support of $2,500 to $5,790 a month, depending on the final amount of the respondent’s income.

The respondent did not believe that the applicant urgently needed financial support because he was maintaining the family’s status quo. He felt it would be premature to make any support order until a parenting plan was put in place and the matrimonial home was sold. He pointed out that he continued to pay the mortgage, the home’s utilities, the children’s cell phone costs, dental and clothing costs, and make payments on the parties’ credit cards. He also claimed to pay a further amount for the children’s extra-curricular activities, with the total expenses amounting to $12,000, which he suggested he could not sustain. Yet the applicant could not verify these expenses because the respondent failed to provide up-to-date financial disclosure.

Court Finds it a Challenge to Apply the Spousal Support Guidelines

The judge considered the caselaw on support where the payor and recipient continued to live under the same roof. In Karajian v. Karajian, the parties had separated but continued to live together in the matrimonial home. They had not developed a parenting plan and had not thought about how to parent their children independently with the resources available to them after their trial. Neither had begun to transition to living and parenting separately.

The judge then addressed the support issues. There was a prior temporary order requiring the respondent father to continue making all payments for the family and to pay the applicant $550.00 per month in spousal support. The judge explained that the court had tried to assess the evidence to determine whether the respondent had, since the date of separation, paid a sufficient amount “to satisfy what would have been his support obligations had the family been in separate premises”. The respondent did make many payments, but these were primarily to maintain the premises, and were less than what was needed to meet the daily needs of the wife and the children. The judge also pointed out that the respondent objected to food costs and that other necessities were insufficiently funded.

Justice Eberhard found that it was a challenge to apply the Federal Child Support Guidelines or the Spousal Support Advisory Guidelines and to determine a quantum of support that should be paid because the respondent did make payments for shelter and some other needs. The Federal Child Support Guidelines indicated that, with an income of $89,796, the table amount of support for two children would be $1,290, while spousal support would be set between $1,156 and $1,666 for the period when the applicant had no income. At the lowest end, if the respondent had paid for half of the wife’s and children’s needs, he would still need to pay $1,223. And the existing amount of $550, which had been previously ordered, was well below that.

Courts May Consider Any Amounts Paid In Lieu of Support

The applicant in Maerzke-Crupi cited Henry v. Boyer in support of her claim. In that case, the parties had a common-law relationship, but after it ended, they continued to live together in the same house. They had two children, and the mother claimed ongoing as well as retroactive child support, which included the period of time after they had separated but before trial, while they resided together. Here, the judge acknowledged that “there is not unanimity in the courts’ decisions as to whether child support or spousal support is payable in reference to a period after the spouses have separated but while they continued living under the same roof”. The judge also found that the decisions were often influenced by whether the payor spouse had paid amounts in lieu of support during the period when the claims were being advanced.

The decision in Henry was considered in a British Columbia case, O.C. v. M.V.G. The court set out the relevant considerations on interim spousal support applications, but recognized that when the parties “are living under the same roof, the analysis has an extra variable”. The court cited the analysis in Henry, noting that although the claimant was paying basic housing expenses, the respondent had demonstrated that her additional expenses and those for the children were not being met. The court found it appropriate to “sever the financial dependency,” and despite the parties living in the same house, the respondent had made out a case for spousal support. The respondent proposed a solution in which she would be responsible for paying one-half of the household expenses while receiving spousal support. The court found that this would provide the respondent with the means to become financially independent.

A Support Order Can Sever the Parties’ Financial Dependency

For Justice Jarvis in Maerzke-Crupi, several themes emerged from the caselaw:

1. The absence of a parenting order does not preclude child support being awarded.
2. If timely and proper financial disclosure is lacking, it will not preclude a support order from being made.
3. If the parties live under the same roof, this can be a complicating factor, but it is not a predominant factor in determining support.
4. The court needs to be satisfied that the financial arrangements that are in place meet the children’s needs and are commensurate with their standard of living before their parents’ separation, or at least are not inconsistent with the Federal Child Support Guidelines.
5. The court should consider assessing support without reference to the parties’ conjoint living circumstances, and then consider whether the amount should be adjusted for shared living costs.
6. A support award can be made to sever the parties’ financial dependency, as a dependent claimant is able to pay expenses without relying on the payor.
7. If a support order is issued, the court may allocate household or child-related payment responsibilities.

The judge reminded the parties that both parents have an obligation to support the children. But while the applicant was entitled to spousal support, she currently did not have the ability or means to support either the children or herself, as she was dependent on the respondent. Justice Jarvis agreed with the finding of the British Columbia court in O.C. that the financial dependency caused by the parties’ shared living arrangements could be severed. The judge then set out the amounts the respondent must pay to meet the child and spousal support obligations. Although the allocation of expenses was not strictly compliant with the Federal Child Support Guidelines and the Spousal Support Advisory Guidelines, it ensured the children were being “supported in a manner not inconsistent with the Guidelines” while also providing a mid-range of spousal support to the applicant.

NULaw: Providing Comprehensive Family Law Support in Toronto

If you are separated but still living under the same roof, your child support and spousal support rights and obligations may not be as straightforward as you think. Whether you are seeking support or responding to a claim, obtaining experienced legal guidance is critical to protecting your financial interests and ensuring your children’s needs are met in accordance with the Federal Child Support Guidelines and the Spousal Support Advisory Guidelines.

At NULaw, our family law team provides strategic advice on interim support motions, financial disclosure disputes, shared living complications, retroactive support claims, and parenting-related financial issues. We work to ensure that support arrangements reflect the law, the facts, and your long-term financial stability. To book a confidential consultation on your family law matter, please call 416-481-5604 or reach out online.