“First Family Rule” Applies, Even if the Payor is Acting in Good Faith
The Ontario Divisional Court considered an appeal in the case of Dean v Dean, 2016 ONSC 4298 (CanLII)
You can read it here.
The chronology of the case is important.
The Wife was unable to work due to medical reasons. She was awarded spousal support in the amount of $1500 per month for an indefinite period of time.
The Husband (Payor) entered into a new spousal relationship. The New Spouse already had three children. The Father of these children demanded that the Husband adopt them as he was no longer willing to pay child support and did not want to see the children again.
The Husband (Payor) and New Spouse agreed to this demand because:
- The New Spouse and the Father had an acrimonious relationship;
- They worried about the psychological damage arising from the Father’s abandonment of the children.
The Father carried out his threat of ceasing child support.
The Husband (Payor) also adopted the child of a deceased family friend who had no life insurance.
The Husband (Payor) brought a Motion to Change. He argued that he could not pay for the children and the full amount of spousal support concurrently.
The Motion’s Court judge held that the adoption of the four children was motivated by a desire to help the children and not to deprive the Wife of her Spousal Support. The Judge reduced the monthly spousal support award to $843 per month.
The Wife appealed to the Divisional Court.
The judges at the Divisional Court held that the spousal support should be restored to $1500.00 per month. The Motions Court judge made two errors.
First, the Divisional Court held that the “First Family Rule” is still the law of Ontario. The “First Family Rule” is to ask whether the Payor’s financial obligation to his or her first family impoverish the second family. In order to answer this question, one must look at the context.
In this case the Husband Payor volunteered to assume the obligation to the second family. Neither the New Spouse nor the deceased friend have the right to expect that the Husband (Payor) would assume financial responsibility for the children. Even if the Husband (Payor) had the best of motives, he should not be allowed to reduce his obligation to the Wife through voluntarily decisions made after separation.
The second error was that the Motions Court judge simply agreed with the Husband (Payor’s) assertion that the Husband (Payor)’s would be unable to pay the full amount of spousal support due to increased child care expenses. The Divisional Court held that the Motions Court judge should have examined the Husband (Payor)’s financial situation in detail and make specific inquires as to why the Husband was unable to pay the full amount of spousal support. In this case:
- Why didn’t the Husband (Payor) and New Spouse rent out property at their new, larger house?
- Why didn’t the New Spouse get a part-time job?
- What about the substantial LIRA that the Husband owned?
- Was the expense of getting a new home reasonable?
- What was the Husband (Payor)’s current income?
- What about the errors in the Financial Statement. The amount recorded for taxes was clearly inflated.