Legal Insights

In cases where a party is awarded spousal support, the recipient will want to obtain some sort of guarantee in the event the payor suddenly dies. It is for this reason that courts have the ability to compel a spousal support payor to alter his/her life insurance policies and name the recipient as a beneficiary to the life insurance policy. As was witnessed in Scheelar v. Scheelar, this can pose a significant problem if the payor dies without complying with the clause in the separation agreement that compels him/her to name the recipient as beneficiary to the policy. In such cases, if the parties included in the agreement a standard clause such as the following, “in the event that the husband should die without such life insurance being in effect, notwithstanding that he remain subject to the obligation to pay child and/or spousal support, the wife shall be entitled to a first claim upon the estate of the husband for the sum of $500,000,” then the payor must have assets for the recipient to collect on his/her spousal support entitlement. In cases where the payor did not have sufficient assets, courts such as the one in Scheelar, refused to order...

In many matrimonial cases, one of the parties will find themselves in a precarious financial situation. More often than not, a mother who sacrificed her career to take care of the children of the marriage, will find herself in need of interim spousal support upon the dissolution of the marriage. Justice Douglas, in Horowitz v. Nightingale, outlined the various principals of interim spousal support as stated in the case of Driscol v. Driscol. They are: On applications for interim support the Applicant's needs and the Respondent's ability to pay assume greater significance; An interim support order should be sufficient to allow the Applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it; On interim support applications the court does not embark on an in depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best; The courts should not unduly emphasize any one of the statutory considerations above others; On interim applications the need to achieve economic self-sufficiency is often of less significance; Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional...

As is prevalent in most Family Law cases in Ontario, each matter is judged on its specific facts. The common law is considered to be judge-made law. This is because, unlike other Civil law traditions which are based on an actual code, the common law is predicated on the rulings of courts. Therefore, the common law is consistently and continuously evolving and changing. In the case of Rozen v. Rozen, Justice Bernard was faced with a motion brought by the former husband, the payor, to vary spousal support due to his retirement and non-competition clause. The husband was earning significantly more money in the previous couple of years, and now felt as though he should not be paying the amount the parties had agreed upon in the year 2003 because circumstances had changed. Justice Bernard rejected the husband’s position and ruled that because the support was based on compensatory grounds, coupled with the fact that had the case been brought when the SSAG existed – the actual quantum awarded would have been less than the mid-range SSAG quantum, the husband could not argue to vary the quantum of spousal support due to his recent retirement. To learn more about spousal...

When determining spousal support, a court will look to the objectives listed in section 15.2 of the Divorce Act. Section 15(2) states as follows: (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should, (a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and, (d) Insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. In the case of Morneau v. Morneau, Justice Cole stated in response to a wife’s claim for a review of spousal support that although self-sufficiency was an important objective of the Divorce Act, it should not be given priority over the other objectives enumerated in section 15(2) of the Divorce Act. Justice Cole stated as follows: "The fact that a party has failed to take reasonable steps to become financially self-sufficient is...

In Ontario, the issue of whether support payments made to a dependant are taxable or deductible often arises in family law courts. The law in Ontario is that child support is not tax-deductible to the payor, and is free of taxation in the hands of the recipient. However, spousal support, on the other hand, is tax-deductible to the benefit of the payor, and taxable in the hands of the recipient. It is interesting to point out that although courts do not have jurisdiction to award spousal support free of taxation, this past year in 2014, Justice Wong of the British Columbia Superior Court, did just that. In the case of Boekhoff v. Boekhoff, a wife sought to claim over $100,000 in arrears of spousal support that had been owed to her since 2001. Throughout the 13 year period where arrears had allegedly accumulated, the wife settled down with a new common law partner, and subsequently negotiated an agreement with her former husband that would see him pay a smaller amount in spousal support per month than was previously ordered. Justice Wong ruled that the agreement was valid and that the fact that the wife had allowed the agreement to survive...

The case of Ontario (Director, Family Responsibility Office) v. Van Westerop was one that saw the court rule on an application by the Family Responsibility Office to have the husband imprisoned for non-payment of spousal support. In this case, the husband owed the full amount of $900,000 in spousal support. The husband had consented to an order that he was obliged to make these support payments, and he had many opportunities to comply with the order over the course of 13 years. Because the husband was unable to prove his case, as was made in Ontario (Director, Family Responsibility Office) v. Buffan, that there was a material change in circumstances since he consented to the order, the Family Responsibility Office application for committal for non-payment of spousal support was granted. The Court of Appeal stated in its reasoning: Recognizing that a statue gives the court the power to make a committal order as a term of a temporary order made in a default proceeding does not, of course, speak to the propriety of imposing that term in any given case. the FRSAEA and predecessor legislation dealing with the enforcement of default orders have always regarded imprisonment for non-payment of those...