When couples separate and there is a significant disparity between their incomes, it is a knee jerk reaction to assume that the person earning more will have to pay spousal support to the other.
This should not be the automatic default and requires a close consideration of the facts of each case.
In the decision of Demers, a relatively recent Ontario Superior Court of Justice decision by Justice Gauthier, Ms. Demers struck out on her motion for interim support. This is despite the fact that her husband of seven years income was almost triple hers – $40,000.00 versus $109,000.00. The wife took the position that she had a need for support and was suffering a financial hardship as a result of the separation. Relatively boiler plate pleadings, and one would have thought would have been self-evident upon the separation of a couple earning different incomes.
However, upon closer examination, the court examined the facts and it appeared that the wife throughout the relationship continued to be financial self-sufficient. She had alone paid for all of her expenses, had alone paid for her 17 year old child living with the parties. There was little in the way of pooling of incomes or expenses. They were responsible for their automobile expenses. The court looked not only at the provisions of the Divorce Act, but also that of the Family Law Act. The court relied on numerous earlier decisions.
The court came to the conclusion that save and except for the pooling of funds for a specific household expense, each party was responsible for his or her own needs, including personal care costs, loan payments and debts. The wife’s children’s needs were entirely borne by the wife without contribution from the husband. There is no evidence that either party contributed a disproportionate share of the cost of the household. There was no evidence that either party subordinated his or her career for the benefit of the other. There was also no evidence of economic merger for joint goals or projects save except for a cottage renovation. Also there was no evidence that either party suffered a disadvantage as a result of the relationship.
The court in the end advised that the wife was not likely to succeed at Trial and as such refused an Order for temporary spousal support.
While the author has some difficulty with this conclusion after a seven year marriage, this is clear evidence that the granting of spousal support is not an automatic right and needs careful attention to detail.
