The Ontario Superior Court recently reviewed an ex-husband’s request to eliminate the spousal support he had been paying his ex-wife for more than 15 years and to vacate all arrears of child support and spousal support. The court ultimately granted the ex-husband’s request to end current and future payments of spousal support but ordered him to continue paying the arrears that were owing.

What Happened?

The parties were married for approximately 15 years (1987-2002) and have two children, both independent adults. Following the couple’s separation, the ex-husband paid child support and spousal support. Child support was ultimately terminated in December 2009, but the ex-husband was ordered to continue to pay $50/month in child support arrears.

Thereafter, the ex-husband brought a motion to “reduce current and future spousal support to nil and vacate all and any arrears of spousal support and child support”; essentially, to “eliminate all financial obligations resulting from his marriage”. Specifically, the ex-husband requested an order to, among other things, cancel or vacate the spousal support arrears owed to the ex-wife personally.

The Ex-Husband’s Position

The ex-husband argued that, by the time he filed his motion, he had been paying support for longer than 15 years, which exceeded the length of his marriage and cohabitation with the applicant and which was longer than the duration of time that the Spousal Support Advisory Guidelines (SSAG) recommend for a 15-year marriage (the SSAG recommends spousal support from 7.5 to 15 years). He believed that he had reached the point where “enough was enough”.

With respect to arrears owing to the ex-wife, the ex-husband argued that there should be no arrears paid since the amount originally ordered by the court exceeded what he should have paid. He believed that he had cared for the parties’ children and received no financial support for this, while the ex-wife collected the child-tax benefit. In the ex-husband’s eyes, this constituted an equitable set-off that should have decreased his child support obligation.

The Ex-Wife’s Position

The ex-wife argued that she did not oppose an order terminating her spousal support as of December 2017, and that it would not be unreasonable to terminate it given the length of their relationship and the amount the ex-husband had paid to date. However, she sought an order declaring that the arrears still owing to her personally were $6,000 and ordering the ex-husband to repay this amount at a rate of $250 per month.

Termination of Spousal Support

Under s. 37(2) of the Family Law Act, if a court is satisfied that there has been a material change in circumstances of either spouse, the court may:

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.

The onus (i.e. responsibility) of establishing the material change is on the person seeking the change (in this case, the onus is on ex-husband because he is seeking the termination of his obligation to pay spousal support and arrears).

The Ex-Husband’s Financial Circumstances

The court noted that there had been no material change in the ex-husband’s income since an order made in 2011.  His most relevant financial circumstances were as follows:

• He retired in February 2014 and began to receive a pension;
• He lived alone and had not remarried;
• His monthly expenses were just over $3,700;
• He owned a truck worth $2,000;
• He had one bank account with a balance of $5.00;
• He had no debts;
• He had no other property;
• His daughter had to support him by providing him food and meals;
• His cost of living had increased; and,
• He had managed to consistently pay between $500-$550 in support.

The Ex-Wife’s Financial Circumstances

The ex-wife’s financial statements noted that she was employed as an independent contractor delivering newspapers and was paid $55 biweekly with no benefits, retirement plan, or pension ($120 monthly). She has a cognitive disability that prevents her from pursuing any other employment. In addition to her employment income, she receives $788 monthly from the Ontario Disability Support Program. She lives alone in geared to income housing.

The Decision

The court noted that this was not a case where the SSAG suggest indefinite support for the ex-wife. Based on the spectrum identified in the Guidelines, this was a “medium-term” marriage (i.e. in the range of 5 to 19 years). In marriages of such length, time limits are generated for eventual self-sufficiency of the recipient spouse and termination of the support.

In this case, the marriage lasted approximately 15 years. The suggested support period under the SSAG for a marriage of that length was 7.5 to 15 years. The court noted that interim support in this case began in November 2002, making the 7.5 year termination date April 2010, and the 15 year termination date October 2017.

The court noted further that while illness and disability can create an exception or alter a support analysis, in this case, while the ex-wife’s disabilities were recognized, the history of the various support orders issued over the years shows that the court did not view her as never being able to achieve self-sufficiency. The quantum of support has been more than the suggested low range, and the maximum duration has been paid.

The court concluded that the end of October 2017 was the adequate termination date in this instance to address the various issues at hand. The ex-husband was still obligated to pay arrears owing until the amount owing was paid in full.

Family law issues, including issues of spousal support, child support, division of property, and equalization, can be thorny and emotional and can significantly add to the stress of the breakdown of a marriage. Consulting an experienced, compassionate family lawyer early in the process can significantly ease the process. As the oldest independent law firm in Waterloo Region, and one of the oldest in the province, Duncan, Linton LLP has been providing clear, effective and strategic legal advice to clients for over a century. Call us at (519) 886-3340 or contact us online for a consultation.