Temporary Spousal Support in Ontario

The Ontario Court of Justice released Carty-Pusey v. Pusey, 2015 ONCJ 382,http://www.canlii.org/en/on/oncj/doc/2015/2015oncj382/2015oncj382.html, on July 6, 2015, and is a good refresher on the principles underlying interim spousal support.

The parties were childhood acquaintances in Jamaica who had reconnected later in life at which time the respondent husband lived in Ontario. One thing led to another and the respondent agreed to sponsor the applicant’s citizenship application. Sadly, their love did not last.

Justice O’Connell cites Kowalski v. Grant, 2007 MBQB 235 (CanLII), for the principles on dealing with temporary spousal support motions:

  1. Interim support is to provide income for dependent spouses from the time the proceedings begin until trial.
  2. The Court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. This task is left to the trial judge.
  3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
  4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

A number of further considerations were added in Robles v. Kuhn, 2009 BCSC 1163 (CanLII):

  1. On interim support motions, needs and ability take on greater significance.
  2. On interim motions, the need to achieve self-sufficiency is of less importance.
  3. Interim support should be ordered within the SSAG range unless exceptional circumstances dictate otherwise.
  4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

In determining entitlement, the court must also consider the spousal objectives set out in section 38(8) of Ontario’s Family Law Act:

(8) An order for the support of a spouse should:

  • Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse:
  • Share the economic burden of child support equitably;
  • Make fair provision to assist the spouse to become able to contribute to his or her own support; and
  • Relieve financial hardship, if this has not been done by orders under Part I (family property) and II (matrimonial home)

Finally, Justice O’Connell mentions the three bases for spousal support fromBracklow v. Bracklow [1999] 1 S.C.R. 420:

  1. Compensatory: based on the economic circumstances of each spouse’s role during the marriage;
  2. Non-compensatory: based on need in circumstances where a spouse cannot become self-sufficient; and
  3. Contractual: based on an agreement between the parties.

Justice O’Connell found the claimant entitled to spousal support on a non-compensatory basis as well as contractual basis because the respondent agreed to sponsor her and meet her financial needs for three years after they wed. Further, the law is clear that the existence of an immigration sponsorship agreement is a relevant factor, although not necessarily determinative, when considering entitlement to spousal support.

In the end, the respondent was ordered to pay $1,000 per month and arrears were fixed at $4,000.

This is an excellent case for Ontario family lawyers to keep in mind as it is recent comprehensive review of the law of spousal support in Ontario.

Jeffrey L. Hartman 

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