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  • spousal support review

    I was just wondering what is your opinion that will happen in this scenario.

    Parents lived in common law relationship for 7.5 years. At the end of the relationship, mother earned 38,000$ and father 85,000$. Two kids, living primarily with the mother and every other weekend plus Wednesday overnight with father. Father pays table amount child support. Mother started working at the same place before parties met, took one maternity leave, father took parental leave for the second kid. Mother still works at the same place, so her carrier did not suffer. They separation agreement states that the father will pay spousal support in the amount of 400$ per month for 5 years, in states the total amount to be paid and the date of the last payment. But it also states that spousal support will be reviewed at that time.

    Based on latest noa, father earns 105,000$ and mother earns 50,000$. If mother decides to take father to court to extend spousal support, what do you think would be the outcome?

  • #2
    First off, you can't accurately predict one judge's behaviour based on other judges behaviour, and it is unlikely your summation is as detailled as a judge would hear. There may be arguments made by the mother than have an impact.

    It would also depend on the wording of the agreement. Did it say the support will end? Or did it simply say the amount will be reviewed.

    If the agreement says that support will end, thats one thing. If the agreement says support will be reviewed that is another.

    Comment


    • #3
      Obviously I realize that you do not know what judge will decide, so i will change my question: What, in your opinion should be the outcome?

      As for the wording of the separation agreement, it is a bit unclear. It says that the father will pay such and such amount for 5 years and that the last payment will be on such and such day and that for that period of 5 years he will pay such and such amount. Which, in my opinion means that the support will be terminated on the last payment date. But then it goes to say that it will be reviewed at that time. So clear as mud. Father's understanding is that the support will end at that time unless something unexpected happened and that mother is great need of support.

      But considering that her income went up, I don't think she is in more of a need than at the time of separation.

      So what do you think would be fair in this situation?

      Comment


      • #4
        Also, in your opinion, what arguments made by mother would have an impact on the decision?

        The only reason she is entitled for support is because father earns more money. But he will probably always make more money as he has better education, to which mother did not contribute in any way.

        Comment


        • #5
          Originally posted by Toutou View Post
          Obviously I realize that you do not know what judge will decide, so i will change my question: What, in your opinion should be the outcome?

          As for the wording of the separation agreement, it is a bit unclear. It says that the father will pay such and such amount for 5 years and that the last payment will be on such and such day and that for that period of 5 years he will pay such and such amount. Which, in my opinion means that the support will be terminated on the last payment date. But then it goes to say that it will be reviewed at that time. So clear as mud. Father's understanding is that the support will end at that time unless something unexpected happened and that mother is great need of support.

          But considering that her income went up, I don't think she is in more of a need than at the time of separation.

          So what do you think would be fair in this situation?
          If it does not specifically use the words terminate or end or something similar, then I wouldn't expect it to end. At a review, any outcome is possible, including ending or extending. What the father thinks is less important than the actual wording.

          Comment


          • #6
            Both parents work full time, earning enough to support themselves. Neither career suffered during the relationship. The children are provided for. They were not married. The relationship was short duration.

            In my opinion, there should not have been spousal support in the first place. There was no need for it, and the lower income earner was not entitled to it. Too late now.

            Since there was spousal support though, the higher income earner should have ensured a firm end date right from the start. None of this review in five years nonsense. Too late now.

            Higher income earner's argument - no further SS is warranted. It has already gone on for longer than half the duration of a short term relationship. SS receiver had those five years to improve their earning potential while being supported.

            Lower income earner's argument - I'm greedy and want more money. Gimme money.

            The only way it could work in court is if the judge is extremely old-school, or if there is more to the situation than you have shared.

            Comment


            • #7
              fthis is from Dickey v. Morrell, 2011 ONCJ 707 @ http://canlii.ca/t/fp9jf

              ''Although I have found that the mother is capable of becoming self-sufficient and I have limited the spousal support order to five years, there is a genuine uncertainty as to whether the mother will make the transition to self-sufficiency by September 1, 2013. The fixed term of support can therefore be reviewed at that time. See Leskun v. Leskun, [2006] 1S.C.R. The Saskatchewan Court of Appeal in Williams v. Williams 2010 SKCA 52 (CanLII), 2010 SKCA 52 held that where a review order clearly imposes a fixed term to give the support recipient an opportunity to find appropriate employment and become self-sufficient, it is incumbent on the recipient at the review hearing to establish that she was unable to become self-sufficient. Absent such evidence, it is not open to the judge at the review hearing to base ongoing spousal support on the respective incomes of the spouses, as found or imputed."

              Comment


              • #8
                Rioe, I agree with you 100%, but it seems that the as soon as there is a significant difference in income, there is automatically a ''need''.

                Based on what I have found, since they have clearly set end date, last payment on such and such date, even though it mentions the review, the receipient should prove that she still needs it, otherwise it is ended. At least that is how i understand this issue.

                Comment


                • #9
                  Originally posted by Toutou View Post
                  fthis is from Dickey v. Morrell, 2011 ONCJ 707 @ http://canlii.ca/t/fp9jf

                  ''Although I have found that the mother is capable of becoming self-sufficient and I have limited the spousal support order to five years, there is a genuine uncertainty as to whether the mother will make the transition to self-sufficiency by September 1, 2013. The fixed term of support can therefore be reviewed at that time. See Leskun v. Leskun, [2006] 1S.C.R. The Saskatchewan Court of Appeal in Williams v. Williams 2010 SKCA 52 (CanLII), 2010 SKCA 52 held that where a review order clearly imposes a fixed term to give the support recipient an opportunity to find appropriate employment and become self-sufficient, it is incumbent on the recipient at the review hearing to establish that she was unable to become self-sufficient. Absent such evidence, it is not open to the judge at the review hearing to base ongoing spousal support on the respective incomes of the spouses, as found or imputed."
                  That first case was a lot more complex as there was self-employment and imputed income going on. The lower income earner was also making less income than in your described situation. It was also a longer relationship and the breakup did affect the employment of the lower-income earner.

                  Anybody who calls $50k a year income unable to be self-sufficient really needs to learn to budget.

                  Comment


                  • #10
                    I want to know what happens. There should be short term and it will end.

                    Comment


                    • #11
                      I am in the exact same position Toutou is describing. A few months ago I posted a similar thread, but didn't get much out of it. My order states:

                      -At the time of separation Mom had been unemployed since leaving her job in December 2006 in order to be at home with Child and take care of him full-time. As such, Dad agrees that Mom is entitled to spousal support in the amount of $1,075.00 per month until such time as Child is attending school full days and she can seek employment. Mom agrees that she must make every effort to become self sufficient by September 2013.

                      -Mom agrees that spousal support is fixed at the amount of $1,075.00 regardless of any post-separation increases in salary.

                      -Mom’s entitlement to spousal support shall be reviewed as of September 1, 2013 as it is expected that Child will be attending school full-days by then. If the parties are unable to negotiate a satisfactory resolution of this issue within 30 days, either party may commence a Court proceeding to deal with this issue.

                      So in under 6 weeks it will be September 2013 and I am at a loss as to how to
                      conduct this "review". The child will be in school full days and as of six months ago my ex wife started earning income running a home daycare. All of the criteria layed out in the agreement has therefore come to pass.

                      I have approached her about signing a domestic contract indicating the end of spousal support but she says (surprise surprise) she will never sign anything that ends it.

                      She claims that her home daycare only makes $3 per hour and our son couldn't
                      handle an afterschool program so that she could work outside the home. And yet, with 3 kids in her home daycare she is capable of earning closer to $44k. After running her daycare for 6 months she claims she only has ONE child, for part-time care. That's not acceptable, and it's also not my fault nor a consequence of the marriage or its breakdown.

                      The ultimate question is, if her daycare doesn't have many clients at the
                      moment, would that be grounds for spousal support to continue? I would say no because on the balance of probability she should be able to pick an extra child or two and then have much more money than she does now on spousal support. The argument can be made that SS is not employment insurance or lifestyle insurance.

                      Comment


                      • #12
                        As mentioned by the other posters, the wording in the order is key: if it states that it is to "terminate" or "end" at the end of the specified time period, then the payor can assume that support payments automatically end at the specified end date. If the recipient has an issue with that (ie. they want it to continue for whatever reason), then the recipient will need to bring a motion and seek an order to that effect.

                        However, if the wording is that it will be "reviewed", then the payor cannot automatically assume that support will end at the specified time BEFORE the matter is/has been reviewed. It is at this review that the onus will be on the recipient (if it states thus in the order) to prove that there are grounds for support to continue.

                        My understanding is that if an agreement cannot be arrived at between the payor and the recipient that support should and will end (sort of an "out of court review" between the two parties) and sign a mutual consent to that effect, then the review must return to court to be conducted and the outcome determined by a judge.

                        Comment


                        • #13
                          That sounds correct, Exquizique.

                          In cases where a review is ordered, support cannot end without a domestic contract (out of court) or new court order outlining the outcome of the review.

                          In other words, for someone who resists participating in the review (non-disclosure, won't attend mediation, etc) the only outcome is to spend even more money on court in order to stop paying. Lovely system.
                          Last edited by FightingForFamily; 07-18-2013, 02:46 PM.

                          Comment


                          • #14
                            In my opinion, there is a difference when it comes to the reviews depending on the wording of the SA. In my opinion, there is a big difference between saying : 1. payor will pay 500$ spousal support to the recipient. This amount can be reviewed after such and such date and between 2. Payor will pay ss for 5 years with last payment occuring on such and such date at which time the issue of spousal support will be reviewed. In my opinion, first implies that he support will continue until it is reviewed and in second that it stops unless the review determines that it should continue.

                            But, in this case I know that mother will go to court and request additional ss, even though in my opinion she is not entitled to it, especially after receiving ss for 5 years already. But it is just my opinion.

                            Comment


                            • #15
                              No need to rely on opinions, simply go to Canlii and do a review of similar cases yourself. Although, do note that not EVERY single case is posted on Canlii, but it should give you a fairly good overview/idea.

                              In any case, based on my own experience of reading through similar cases in Canlii, whether the "review" is phrased as 1 or 2 (as per your examples) does not make much of a material difference in that in the court's eyes, they both mean a review has to occur and an outcome determined by the court before any changes can be applied to the support ordered (quantum, duration and regime). Changes here include termination.

                              Of course, one can always argue your interpretation to a judge, and, depending on the circumstances of the particular case, may even succeed. However, you're still battling against what the common understanding of such wording is and probably at the mercy of the assigned judge's interpretation.
                              Last edited by Exquizique; 07-18-2013, 03:34 PM.

                              Comment

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