Spousal Support in Ontario July 2010: Hard Facts

To: John Doe
July 6, 2010
Re: Doe and Doe
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You asked me for my further thoughts about spousal support in this file.

I won’t repeat the basic facts, ages, length of cohabitation and marriage, your child of the marriage etc. save where they may appear below fitted into my comments.

If you review my comments to you from time to time over the course this file concerning your liability for spousal support, you will see some declining optimism and some increasing pessimism. That’s because early on this case the Ontario Court of Appeal in Fisher v. Fisher, in early 2008, surprised most Ontario Family Law lawyers by awarding time limited support to a wife after a nineteen year marriage. Lower courts in Ontario—essentially Superior Court trial judges—following Fisher made time limited support orders on all kinds of different fact patterns where, before Fisher, lawyers would have expected spousal support orders with no cut off.

(Also following Fisher, and a Supreme Court of Canada case called Leskun, courts cut down on a former wide practice of ordering support coupled with a review after a certain number of years, where the review was like a new trial on spousal support issues to see where the parties further stood.)

The cases so following Fisher in ordering time limited support in all kinds of situations reached their peak near the end of 2008.

The general trend in the cases, and an increasing one, is to be more sparing in the making of such time limited support orders in marriages (which, for duration, include cohabitation before marriage) of longer duration. Under the Spousal Support Guidelines (“SSAG”) a long marriage is set as one where its length exceeds 20 years or where the length of cohabitation plus the payee’s age at separation exceeds 65, called “the rule of 65”. Here, under either test, your marriage including pre marriage cohabitation, 17 years, is at the relatively higher end of marriages of intermediate length. (I remind you that unlike the Child Support Guidelines which are mandatory the SSAG are advisory. But the case law indicates that where courts depart from the latter’s generated outcomes, they are to say why, and it can be a ground of appeal if they don’t.)

The analysis in Fisher has evolved to paying greater attention to what’s called “compensatory support” as opposed to what’s referred to in the cases as “needs-based support”. In a nutshell, need is what a payee spouse needs, as far as income allows, to live in some degree of proximity to how the parties lived when married. The longer the marriage, the more pronounced that proximity becomes. Compensatory support is meant to reflect, and compensate for, what a payee spouse gave up of her own career in order to help the paying spouse advance in his. (This all is of course irrespective of gender. I’m using “his” and “her” just for ease of reference.) There is no formula for it. It arises from the facts. Also, in any given case, both rationales can coexist.

So, in a just released case, March 23, 2010, Cassidy v McNeil, the Ontario Court of Appeal overturned a trial court’s award of 5 years of spousal support, and then to end, after a 23 year marriage. The payor husband, a tenured professor was earning $137,000.00, and had custody of the parties’ 3 children. The wife from teaching contract to teaching contract earned $85,000.00 yearly. The wife was 48 when the parties separated. The Court of Appeal awarded her non time limited spousal support. What drove the court’s reasoning was (1) by any definition this was a long term marriage under SSAG and (2) the wife demonstrated on the facts that she had made real sacrifices in advancing the husband’s academic career to the detriment of her own—including raising the 3 children and moving to different locales 3 times.

Justice Lang said in Cassidy:

“I observe that the SSAG presumptions regarding duration and age simply reflect case law awarding indefinite support in long-term marriages where dependency on life style is established and recognize that a spouse’s age at separation is relevant to becoming self supporting.” (My emphasis)

Both in Fisher –19 year marriage, no kids, two careers and a big income differential—and Cassidy, the reasons were written by the same Madame Justice Lang. And both cases are like book ends between definite and indefinite spousal support, the former, Fisher, based on a needs rationale for spousal support with no compensatory rationale and Cassidy based, as mentioned, on both need and compensation rationales for indefinite support.

Amongst what differentiates your case from Cassidy are: you have as a matter of SSAG definition an intermediate marriage, not a long term marriage; Ms Doe was 37 when you separated; and she raised one child, now 8, together with you as an involved active parent as opposed to three children. It’s not clear to me how strong a case she can make for sacrificing her own career so that you could advance in yours. But the stronger the case she can make for that, the stronger will be her argument for indefinite support. As well, as you can see by the enclosed SSAG calculation, they generate spousal support not to exceed 17 years from date of separation, and without specification of even a range of duration. Therefore, presumptively, you are to pay time limited support and an adjudicator has to say properly why he or she would order otherwise.

There is worth noting a case decided in 2009 by the Ontario Court of Appeal called Rioux. The parties had been married for 21 years with the husband earning $105,000.00 per year, the wife $16,000.00 a year with 1 child in university, and both parties 45 when separated. The Ontario Court of Appeal awarded five years of support only, but with the possibility of spousal support review after the five years.

The court held that it was following Fisher in time limiting the support as no compensatory rationale emerged on the facts. It may be thought the court simply was mistaken in its holding and is an odd exception as decisions go. But the Ontario Court of Appeal is the Ontario Court of Appeal. The case is there to be used in arguing against indefinite support in cases like yours.

The case is also noteworthy in bucking a trend against reviews by pointing to the possibility of holding one. The trend against ordering reviews has, as well, gotten some criticism from family law academics as limiting the court’s flexibility in dealing with cases with shades of gray, such as yours.

As you can see by the enclosed Calculations, the SSAG summary conclusion on your basic facts is:

“The formula results in a range for spousal support of $3,913.00 to $4,898.00 per month for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 8.5 years and a maximum duration if 17 years from the date of separation.”

In my view, if Ms Doe makes a good showing on the issue of her entitlement to compensatory support, a court/competent arbitrator will, on balance, be likely to award indefinite support but might be persuaded—given Rioux— to provide for a review.

Considering though that:

1. subject to a review and subject to possible material changes in circumstances for either of you, the spousal support issue is “zero/sum” as between indefinite and definite payment;

2. there are sufficient differentiations between your facts and those, for example, in Cassidy, so as to allow you, in my view, plausibly, as opposed to foolishly and hopelessly, to argue for time limited support; and

3. by so litigating issue you increase the possibility of a review as a second best position;

I think it worthwhile so to litigate the issue. If you do, then we fulfill our overall approach of settling what we could and arbitrating—with a competent arbitrator— the issue of spousal support in a relatively streamlined way, which seems to be where we are in fact.

Please advise as to your own views, comments and questions.