Court of Appeal Terminates Spousal Support After Wife Fails to Return to Work for 22 Years

May 23, 2019

Mark Feigenbaum

The Ontario Court of Appeal recently decided to end spousal support for a wife after she had failed to return to work 22 years after the divorce.

What Happened?

In 1994, the parties separated after a marriage of 15 years, divorcing two years later. They had two children together. When they had married, they each had degrees in commerce and were employed commensurate with their education. The wife left work when their first child was born. She returned to work briefly after their first child turned four, and ultimately stopped working outside the home. By then, the husband was working in the securities business and earning a very good income for the family. 

At the time of the 1996 trial, the husband had become a bank analyst with a brokerage firm and had earned approximately $390,000 the previous year. Later in his career he would earn well in excess of $1 million per year. The wife was not employed at the time of trial, but had obtained a CMA accounting designation after separation as well as a real estate agent’s licence. She testified that she planned to become self-sufficient.

In 1996, the husband was ordered to pay spousal support in the amount of $4,750 per month on an indefinite basis. The award was premised on the wife quickly returning to the workforce. However, she did not do so, and the husband continued to pay spousal support for 22 years. 

In fact, the wife never re-entered the workforce. Her income came almost exclusively from spousal support. She purchased rental properties, some of which operate at a loss, and also had an organic farming business that also operated at a loss. She had a net worth of $781,112, after leaving the marriage with a net worth of approximately $200,000.

In 2016, in anticipation of his retirement, the husband brought a motion to change the spousal support order, asking that spousal support be terminated. The wife brought a cross-motion to increase support to $15,000 per month.

Lower Court Decision

Before the motion judge, the wife argued that she was frustrated in her attempts to find work because of the residual impact of having been out of the workforce and at home with the children for ten years during the marriage. Additionally, she said she suffered further disadvantage from having relocated to Toronto, where she had no business contacts, which she had done for the benefit of the husband’s career and to the detriment of her own. She also sought to introduce evidence that she suffered from depression, which prevented her not only from obtaining meaningful work, but also from even looking for work.

However, the motion judge found that the wife never obtained employment, despite having marketable skills, because she never made any serious attempt to do so. Although the wife had argued before the motion judge that she had been incapable of working or obtaining employment because of depression and disability, and obtained an adjournment of the motion in order to provide evidence to that effect, she ultimately provided no evidence. The motion judge found her not to be credible.

As a result, the motion judge concluded “[t]he only order that can be made to promote her self-sufficiency would be a termination of support”. He further stated:

“I am mindful that this order may create economic hardship for [the wife], because she does not appear to be self-sufficient at present. However, the question I must address in this case is whether she remains entitled to spousal support from her former spouse. In my view, having regard to the provisions of the Divorce Act, it is clear she is not.”

The motion judge allowed the husband’s motion and ordered spousal support terminated effective October 5, 2016. Costs were awarded against the wife in the amount of $50,000. 

The wife appealed both the decision and the award of costs against her in the amount of $50,000.

Court of Appeal Decision

Thecourt stated that s. 17(7) of the Divorce Act does not create a requirement that a former spouse become self-sufficient; it merely directs that a support order should, among other objectives, encourage a former spouse to become self-sufficient, and only “in so far as practicable.”

The court found that, while self-sufficiency was a factor of particular importance in determining whether support ought to be terminated, the motion judge specifically assessed each of the objectives under s. 17(7) of the Divorce Act. None of the objectives spoke in favour of continued support. The court found that: “[u]nless, it can be said that the judge gave unreasonable emphasis to the self-sufficiency factor, this court has no basis for interfering.” 

Regarding the compensatory nature of the support, even though the original order was intended to compensate the wife, the court did not find that the trial judge made any error in deciding that the wife was not entitled to support in perpetuity. 

Finally, the court stated that, while the result appeared harsh, the motion judge was entitled to make the order that he did, and there was no basis on which the court should interfere with it.

As a result, the court dismissed the appeal and denied leave to appeal the costs order. It awarded the husband costs of the appeal in the agreed amount of $15,000.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.


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