Spousal support serves three purposes:

• To compensate the spouse with the lower income for sacrificing some power to earn income during the marriage
• To compensate the spouse with the lower income for ongoing care of children
• To help a spouse who is in financial need if the other spouse has the ability to pay[1]

Spousal support recognizes that spouses often make sacrifices that help the family. These sacrifices can disadvantage the spouse if the marriage breaks down. Spousal support recognizes these sacrifices and tries to correct them and avoid injustice. Spousal support is typically assessed using the Spousal Support Advisory Guidelines[2] (SSAG).[3] This is not legislation but rather it is a set of guidelines that the Department of Justice released to help address issues related support amounts and duration. They are designed to be used with divorces under the federal Divorce Act[4].

Aside from the traditional spousal support model that SSAG provides, there is another type of spousal support called compensatory support. Compensatory support is utilized to compensate a spouse upon the breakdown the marriage for contributions made during the marriage. Compensatory support has its roots in the Supreme Court of Canada decision in Moge v Moge[5]. The court said that compensatory support seeks to rectify the economic disadvantages of the marriage. In Moge, the court recognized that a wife who sacrifices her career aspirations for the family will have a decreased earning potential if the marriage breaks down. When she goes back to work, she will be at a disadvantage. Justice Dub said that a woman who stays at home can see her earning potential decrease by 1.5% for each year that she is out of the work force. This sacrifice can warrant additional support from a spouse who reaps economic advantages from it.

A case that illustrates when the court will utilize a compensatory model for spousal support is the recent Ontario Superior Court of Justice decision in Laurain v Clarke[6]. Justice Mossip outlined a series of factors that entitled Ms. Laurain to compensatory spousal support

[1] Department of Justice, About Spousal Support http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html
[2] Department of Justice, Spousal Support Advisory Guidelines http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html
[3] Christine Montgomery, DIVORCEmate software Inc,http://www.divorcemate.com/library/SSAG_Paper_0906.pdf
[4] Divorce Act, http://laws-lois.justice.gc.ca/eng/acts/D-3.4/index.html
[5] Moge v Moge, http://canlii.org/en/ca/scc/doc/1992/1992canlii25/1992canlii25.html
[6] Laurain v Clarke, http://canlii.org/en/on/onsc/doc/2013/2013onsc726/2013onsc726.html

• • When the parties first met, she was employed, made a decent living, was self supporting and had accumulated significant assets.
  • She moved cities and left her job at the request of her husband so he could pursue a new job.
  • She stopped working at the birth of their first child, upon returning to work she changed positions.
  • After the second child, and upon her husband’s request, she stayed home to raise the children.
  • The husband’s career advanced because of his hard work and the fact that he could devote 100% of his time to his career with the knowledge that his wife was devoting 100% of her time to the family and home.
  • She was out of the work force for roughly 10 years at the date of separation, she has a lack of formal training or post-secondary education, and her chosen profession has changed dramatically since she left it.

Ms. Laurain was entitled to compensatory support because she made significant sacrifice for the family welfare that put her at an economic disadvantage when the marriage broke down. In the same vein, her husband received a significant advantage from his wife making those sacrifices.

The compensatory model is generally used to give a lump sum payment in return for the sacrifices that one of the spouses made. It is particularly applicable to a support agreement when property division is insufficient to compensate the one spouse for those sacrifices. Finally, compensatory spousal support can be used by the courts in conjunction with the traditional support methods. In Ms. Laurain’s case, she also received support in the middle to high range of the Spousal Support Advisory Guidelines (SAGG).

The issues surrounding spousal support are complex and require careful consideration. Compensatory spousal support is a tool that can help compensate a spouse who has been disadvantaged by the breakdown of a marriage. The lawyers at Dale Streiman Law LLP have decades of experience dealing with spousal support. They would be happy to consult with you on any of your family law needs.

By : Fred Streiman & Stephen Duffy

The Ontario Court of Appeal in its December 2012 judgment in Symmons v. Symmons reviewed a Trial decision that involved many complicated and interacting factors. In that case, the parties first lived together for almost 6 years, married in 1999 and separated 10 years later. However, the husband was 13 years older than his now estranged bride and he had retired. Because of the age gap, the pension the husband had earned at work had vested fully, including the survivor’s benefits to be enjoyed by his now former spouse. Those survivor benefits were deemed to be worth over $300,000.

The wife was very unhappy that this was being tagged as an asset that she would have to now share with her retired husband and attempted to convince the court that is was unfair and indeed it met the test of unjust enrichment or alternatively an unconscionable division under Section 5 (6) of the Family Law Act.

In the end, the Ontario Court of Appeal said no, holding that it was not unconscionable (which one might describe as being unfair on steroids), because the wife’s net worth had increased substantially during the marriage and taking into account the survivors benefit amongst other factors. The Court did equalize the survivors benefits.

I have in this article used the words unfair and unconscionable rather loosely, which is incorrect. For married parties, the property division scheme is set out in the Family Law Act. It is a very precise formula which must be followed.

A spouse may argue that to blindly follow the formula would produce an unconscionable result and therefore the court should use its discretion and order a different result.

The drafters of the Family Law Act very specifically chose the word unconscionable rather than unfair. Unconscionable means a result that would shock the conscience of the court and its threshold is exceptionally high. This area of law has been litigated many times since the enactment of the Family Law Act. To determine whether or not a fact situation has a reasonable chance of meeting that test requires a lengthy and detailed examination with a qualified family law lawyer.

By: Fred Streiman

Elsewhere I have discussed the different property rights that exist between common-law and formally married spouses. They are not the same and continue to remain very different.

Married parties are subject to the property scheme imposed by the Family Law Act. Grossly simplified, each of the spouses walk away from the marriage with an equal net worth.[1]

Common-law parties are limited to common-law rights also known as judge made law. These can arise from the way that title is held. An example are houses registered in both names and as such belong to both parties. Or alternatively, the application of judge made equitable rules which one can paraphrase as being fairness rules. One of those rules is unjust enrichment. Unjust enrichment and its close cousin, joint venture, were explored and expanded upon by the Supreme Court of Canada in its 2011 decision in Kerr v. Baranow.

For married couples, the property regime under the Family Law Act does not entirely exclude the application of the fairness rules or unjust enrichment. However, the Ontario Court of Appeal [2] has held that although the law is clear that equitable principles such as unjust enrichment have not been supplanted by the enactment of the Family Law Act in the vast majority of cases an unjust enrichment that arises as a result of the marriage would be fully addressed through the operation of the equalization provisions.

In other words, the court will rarely use these extra ordinary powers.

Unfair vs Unconscionable

The Ontario Court of Appeal in its December 2012 judgment in Symmons v. Symmons reviewed a Trial decision that involved many complicated and interacting factors. In that case, the parties first lived together for almost 6 years, married in 1999 and separated 10 years later. However, the husband was 13 years older than his now estranged bride and he had retired. Because of the age gap, the pension the husband had earned at work had vested fully, including the survivor’s benefits to be enjoyed by his now former spouse. Those survivor benefits were deemed to be worth over $300,000.

The wife was very unhappy that this was being tagged as an asset that she would have to now share with her retired husband and attempted to convince the court that is was unfair and indeed it met the test of unjust enrichment or alternatively an unconscionable division under Section 5 (6) of the Family Law Act.In the end, the Ontario Court of Appeal said no, holding that it was not unconscionable (which one might describe as being unfair on steroids), because the wife’s net worth had increased substantially during the marriage and taking into account the survivors benefit amongst other factors. The Court did equalize the survivors benefits.

I have in this article used the words unfair and unconscionable rather loosely, which is incorrect. For married parties, the property division scheme is set out in the Family Law Act. It is a very precise formula which must be followed.A spouse may argue that to blindly follow the formula would produce an unconscionable result and therefore the court should use its discretion and order a different result.

The drafters of the Family Law Act very specifically chose the word unconscionable rather than unfair. Unconscionable means a result that would shock the conscience of the court and its threshold is exceptionally high. This area of law has been litigated many times since the enactment of the Family Law Act. To determine whether or not a fact situation has a reasonable chance of meeting that test requires a lengthy and detailed examination with a qualified family law lawyer.

The courts, including those having jurisdiction over family law matters are an important representation of the state. When the court makes an Order, it is not one solely between the litigants, but more importantly, is viewed as an Order by the court itself.

Failing to obey an Order of the court, can in certain circumstances lead to the court viewing the offending party as showing disrespect, not only to the other party (often an estranged spouse), but to the authority of the court itself.The court has many tools to deal with such contempt including striking the pleadings of the offending party, and its ultimate resource jailing the contemptuous party.Striking pleadings means that one is no longer a participant in the court process and the other party can proceed as if the offender had never filed any documents and was not participating in the law suit. The court would only hear one side before making its decision.

Examples of contempt are failure to pay the full amount of support that is required, not preserving assets if they had been so ordered or refusing to transfer property pursuant to a court Order.The most severe of remedies, namely jail, is rarely administered. However, this power was recently brought into sharp relief in the recent Ontario Superior Court decision of Picken v Picken.In that case, the husband had been ordered within a divorce action to preserve the sale proceeds from the sale of a property. Eventually there was to be a payment to the wife for her share of $154,000.00, yet the husband, in the face of a direct Order to the contrary, dealt with the proceeds unilaterally and had kept out of the sale proceeds of more than $400,000.00, only $77,000.00.

The court felt that this lack of respect for the court process and an Order of the court could only be remedied by a finding of contempt which included a jail sentence of thirty days.The husband was lead out of the court room in handcuffs and in an alarming twist, found himself housed for most of his sentence in a maximum security jail sharing a pod with six accused killers.At times, a litigant would be excused for feeling that the court process is cumbersome, expensive and ineffective, but occasionally the court will flex its muscle.

A finding of contempt is an extremely technical and difficult process. The lawyers of Dale Streiman Law LLP have a great deal of experience, both in bringing and responding to such an application.

By: Fred Streiman

Frequently, Muslims upon marriage will sign an Islamic Marriage Certificate, sometimes also titled a Marriage Contract. These are known as Mehrs. Mehrs will often contain a clause requiring the payment to the bride of a certain amount of money upon demand. These Mehrs will vary in the amount of the payment required but can contain payments that can be very substantial.

The enforceability of these Mehrs within the context of family law as opposed to simply being enforced by Islamic religious courts, has been a subject frequently debated and ruled upon by the courts.In the 2009 Superior Court of Ontario decision of Khanis v. Noormohamed, Madame Justice Backhouse, a highly experienced family law judge, upheld the validity of a Mehr which contained the following clause:

I hereby agree and undertake to pay an agreed sum of money $20,000.00 by way of Mehr to my said wife. I hereby agree, confirm and declare that my undertaking to pay the agreed sum of money by way of Mehr to my said wife shall be in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the lands,

Other Mehrs contain phrases as simple as, dower, pay on demand $20,000.00. These simple words inserted in an Islamic Marriage Certificate may be interpreted by a court as being a Domestic Contract pursuant to Section 55 of the Family Law Act. A marriage contract is a form of a domestic contract.One would have thought that the courts would have been reluctant to enter into the religious battleground when many religions have their own internal judicial systems for administering sectarian law.

However, such an assumption would be incorrect.Courts across Canada have differed on whether traditional Marriage Contracts under Muslim Law are enforceable. The Ontario Courts, as recently as 1998, in a decision of Justice Rutherford, held that the courts should not determine rights and obligations of the parties under the Mehr as it would lead the court into the religious thicket.

However, the world changed when the Supreme Court of Canada in the 2007 decision of Bruker v. Marcovitz held that the fact that a dispute has a religious aspect, does not make it non-justiciable (one has to love legal speak, non-justiciable means non enforceable or not properly before the courts). The Supreme Court of Canada went onto say that people can transfer their moral obligations into legally binding ones.Justice Backhouse then went on in the Khanis case to apply the requirements under Section 55 and 56 of the Family Law Act to determine whether or not the Mehr met the requirements of a valid and enforceable Domestic Contract. In the Khanis case, the court held that it did meet those requirements and was indeed enforceable and was a right that the wife was entitled to over and above all the other rights that she had under the laws of Ontario and Canada.

Even though the Mehr did not say when the $20,000.00 was payable, Justice Backhouse found that it was immediately payable whenever the wife simply demanded it. Indeed, Mehrs are generally interpreted within Islamic law as an on demand promissory note which the wife can call for payment at any time during the marriage and not simply upon its end.To reinforce the decision of Justice Backhouse, it was appealed by the losing husband to the Ontario Court of Appeal where on February 15th, 2011, it upheld Justice Backhouses decision specifically including and commenting upon the accuracy of her findings with respect to the Mehr.

The obvious conclusion is that one should not enter into a Mehr lightly as it is in reality no different than any other Domestic Contract. Especially upon second marriages, Dale Streiman Law L.L.P. urges its clients to undergo the emotionally difficult but essential process of having a Marriage Contract drawn up, before the marriage. It is insurance money well spent.

Compensatory spousal support refers to the remedy for a party in a longer-term marriage who sacrificed opportunities, such as career advancement or furthering education, in order to care for the family.

Objectives of compensatory support pursuant to Section 15.2(6) of the Divorce Act:
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• Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• 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;
• Relieve any economic hardship of spouses arising from the breakdown of the marriage; and
• In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

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These principles are premised on Moge v. Moge (which says that these four objectives need to be examined together) and Bracklow v. Bracklow, which are cornerstone family law cases on the issue of compensatory spousal support.

Under the Family Law Act, the term compensatory support is not used, but Ontario courts have used this term as an approach to the objectives of support order as set out in Section 33(9)(1):

Considerations for the amount and duration of support for a spouse relative to need:
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• The dependant’s and respondent’s current assets and means;
• The assets and means that the dependant and respondent are likely to have in the future;
• The dependant’s capacity to contribute to his or her own support;
• The respondent’s capacity to provide support;
• The dependent’s and respondent’s age and physical and mental health;
• The dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
• The measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
• Any legal obligation of the respondent or dependant to provide support for another person;
• The desirability of the dependant or respondent remaining at home to care for a child;
• A contribution by any dependant to the realization of the respondent’s career potential

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The debate, often times, when it comes to spousal support is whether the support is need based or entitlement based and the basis for spousal support strongly affects the quantum and duration for which support is awarded.Compensatory support is intended to compensate a spouse upon the breakdown of a marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a consequence of raising children (Roseneck v. Gowling [2002] O.J. (OCA) 4939)

In circumstances where compensatory support is awarded, support tends to be higher; support will tend to go on for a longer period of time; support can be based on the payor’s post-separation income; Quantum will depend more on marital standard of living Where compensatory support is awarded based on need, support will often be lower; support will often terminate sooner; support payor may be able to shelter post-separation increases in income; self-sufficiency, or an adjustment to a lower standard of living will guide the court; quantum will be determined more objectively.

Compensatory support will likely result if one party significantly contributed to the career or education of the other, particularly in the form of child care, but also in the form of direct or indirect financial contribution to the education or career of the other; the contributing party suffered some demonstrable reduction in earning capacity as a result of the contribution; and/or the parties financial interests have merged over time in a relatively long-term marriage

From a practice standpoint, make sure Court states the basis for the entitlement of support