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Does a “Mental Breakdown” caused by the Separation Create an Entitlement for More Spousal Support?

by Daniel Gloade on July 11, 2016

The Ontario Court of Appeal provided some guidance in the case of Hersey v. Hersey, 2016 ONCA 494 (CanLII).  You can read the decision here.

The chronology is as follows:

  • In either 2004 or 2005 the parties separated when the Husband assaulted the Wife;
  • In 2007 there was a final Order for the Husband to pay the Wife spousal support at $2000 per month;
  • From March 2007 to December 2009, the remainder of the issues where being litigated.  Also during this time, the Mother took three extended leaves of absences from work. The Wife said that she needed this time to deal with the divorce proceedings and the assault;
  • In 2013 the Wife started to work part time.  She said that it was due to the stress;
  • In 2015 the Husband brought a claim to reduce child support because the child was attending university.  The Mother brought a motion for increased spousal support because her income decreased and the Husband’s income increased since 2007;

The lower court Judge, the Honourable Madame Justice Andra Pollak, held that there was no reason to adjust spousal support from the parties’ respective incomes at the date of separation.  There was no evidence that the marriage affected the career path of either party. The parties maintained the same careers from the date of separation to the present.

Second, Pollak J. did not feel that the Mother’s decision to work part-time was caused by the breakdown of the marriage.

The Ontario Court of Appeal upheld Pollak J’s decision.

This decision is relevant for two reasons.

The Ontario Court of Appeal formally recognized the precedent that states that changes in income after the separation does not necessarily change the monthly spousal support amount.  This is different than child support, where there is a presumptive right that the child support amount will be adjusted as the payor’s income changes.

In this case, the Wife claimed that she suffered a loss of earning capacity.  The loss was NOT caused by her role in the marriage, however, but due to the stress caused by the break-up and the Husband’s assault.  Neither Pollak J nor the Ontario Court of Appeal expressed a problem with this argument per se.  It was rejected due to a lack of evidence.  This suggests that Ontario courts would accept this argument on a different set of facts or with better evidence.  

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