Case reference: Fisher v. Fisher, 2008 ONCA 11 (CanLII)
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Family law — Support — Spousal support — Wife not being economically disadvantaged by 19-year childless marriage but being economically disadvantaged by its breakdown — Husband’s salary increasing dramatically just before separation and wife facing greatly reduced lifestyle instead of sharing in that gain — Wife being 41 years old at time of separation — Wife working full time at time of trial and earning annual income of $30,000 — Wife not being self-sufficient merely because she could meet her basic needs — Self-sufficiency to be considered in context of marital standard of living — Husband starting new relationship with woman who chose to stay at home — Husband’s endorsement of that choice could not be relied upon to reduce his support obligation to wife — Trial judge not erring in refusing to make indefinite spousal support award but erring in quantum and duration of award — Quantum and duration being increased on appeal — Total amount of support ordered on appeal falling within Spousal Support Advisory Guidelines’ global range while total amount of support ordered by trial judge falling far below Guidelines global range — Trial judge erring in imposing review order in absence of evidence that wife’s circumstances would change at identifiable point in future.
The parties were married in 1985 and separated in 2004, when the wife was 41 and the husband was 42 years old. There were no children of the marriage. The wife was employed full-time approximately half of the time for most of the marriage but worked full time during the last years of the marriage, earning an average annual income of $30,000. The husband’s income increased dramatically from $81,800 in 2003 to $120,000 in early 2004, when he accepted a new job. The marriage ended shortly afterwards. The wife was taken by surprise by the separation, and became clinically depressed. She took disability leave for about a year, and then returned to full- time employment. She was earning $30,000 annually at the time of the trial. The husband earned approximately $132,000 in 2005 and $140,000 in 2006. He began a relationship with a new partner, an American physiotherapist with two young children, who elected not to retrain to meet Ontario professional qualifications but instead to stay at home. Her contribution to the family income was the US$700 monthly child support she received from the children’s biological father. The trial judge ordered the husband to pay the wife monthly spousal support of $2,600 from March 1 to December 1, 2006; $1,800 for 2007; and $1,050 for 2008, and stipulated that either party could seek a review of entitlement and/or quantum after January 1, 2009 without the need to establish a material change in circumstances. The trial judge declined to make support retroactive, leaving the wife with the $2,000 monthly interim support she was awarded from October 1, 2004 until the end of the trial. The wife appealed.
Held, the appeal should be allowed.
The trial judge made certain errors of fact. He mistakenly found that the wife was employed full time throughout the marriage. He speculated that she would perhaps enter into a new relationship in which her day-to-day expenses might be shared. There was no evidence of any potential new relationship. As these errors contributed to the trial judge’s decision, the award had to be set aside. [page242]
There was no reason to interfere with the trial judge’s determination that an indefinite order was not appropriate given the wife’s relative youth and her employment position.
The husband voluntarily assumed significant responsibility for a second family when he knew, or ought to have known, of his pre-existing obligation to his first family. There was no evidence that his obligations to his first family would impoverish his second family. He could not rely on his second wife’s preference to remain at home to reduce his support obligation to his first family.
The wife was not economically disadvantaged by the marriage but she was economically disadvantaged by its breakdown. Her standard of living was significantly reduced when she moved to a small townhouse and she lost not only her future dream and the large financial salary increase in which she was led to believe she would share but she also lost the comfortable middle-class lifestyle to which she was accustomed. She was also economically disadvantaged by the reactive depression she suffered after the separation.
Self-sufficiency is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, it relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation and that they can reasonably anticipate after separation. Thus, a determination of self- sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances, the duration of their cohabitation and other relevant factors. In all the circumstances, the wife should not be considered self-sufficient on the basis of her current $30,000 income.
In the circumstances, the trial judge erred in adding a provision permitting either party to apply for a review after January 1, 2009. Review orders should be the exception not the norm. They are appropriate when a specified uncertainty about a party’s circumstances at the time of trial will become certain within an identifiable timeframe. When one is granted, it should include specifics regarding the issues about which there is uncertainty and when and how the trial judge anticipates that uncertainty will be resolved. In this case, there was little evidence that the wife’s financial circumstances would change at an identifiable point in the future, apart from the potential return of her income to pre-separation levels, which would not have rendered her self-sufficient when considered in the context of her marital standard of living.
The trial judge erred in refusing to make the final support order retroactive to October 2004.
To provide her with a reasonable transition following her 19- year marriage, the wife would need support for seven years, beginning with the year of separation. The award was varied to $3,000 monthly from October 1, 2004 to March 1, 2008, followed by $1,500 monthly from April 1, 2008 to September 1, 2011.
The trial judge failed to consider the Spousal Support Advisory Guidelines. When counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. The trial award in this case, including interim support, but assuming termination in December 2008, totaled a lump sum of $94,200, an amount that fell far below the Guidelines’ global range. In comparison, the support as varied on appeal totaled $189,000, an amount which fell within the Guidelines’ global range.
*source: Canlii
