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TEST FOR THE ENTITLEMENT OF SPOUSAL SUPPORT

by Daniel Gloade on June 23, 2015

You can find an excellent summary of the law of spousal support in the decision of Peters v. Peters, 2015 ONSC 4006.  The Honourable Justice K.A. Gorman quoted the key decisions regarding the law of spousal support.  Of greater significance, however, are the comments regarding spousal support entitlement.

In this case the Wife asked for spousal support from the husband.  The Husband drove a truck and the Wife worked at various minimum wage jobs.  When they separated, the parties were aware that the Wife had problems with her thyroid, but nothing more.

Approximately two years post-separation, the Wife was diagnosed with chronic, treatment-resistant paranoid schizophrenia.  The Wife could never work again.  She sought spousal support from the Husband.

Justice Gorman considered the two grounds from spousal support.  The first ground is compensatory.  It can arise if a party would have earned more money by now but for the marriage.  Commonly, this is a mother leaving work to caring for a child.   Compensatory spousal support can also arise, however, when one partty receives an economic benefit arising from the work of the other party.   Justice Gorman did not elaborate on the difference between the two tests.

The longer the marriage, the greater the assumption that the two partner’s personal finance are intertwined.  The longer the marriage the greater the importance of a match in the parties’ post separation standard of living.  Justice Gorman cautioned, however, that a change in the standard of living is but one factor in determining spousal support entitlement and quantum.

The other test is non-compensatory.  It is to “relieve any economic hardship of the spouses arising from the breakdown of the marriage”.  The emphasis is not on the parties’ respective roles during the marriage but the break-up itself.

In this case, however, the Husband not have to pay spousal support because the illness was known after the separation.  Justice Gorman added, however, that the Husband would have been obligated to pay support if he had known of the mental illness at the time of the separation.

Spousal support should address hardships connected to a marriage.  Why does the mere knowledge during a marriage trigger spousal support?  The two tests (economic loss to one party and the economic benefit to the other party) seem to be identical.  Perhaps the difference is that in the financial loss test the claimant must adduce some evidence of the career and income he or she would have received but for the marriage.  Proving a hypothetical is difficult.  What if the party had no clear plans before getting married?  For the other test, however, one need to prove that the other party gained financially.

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