My latest reported decision, Olson v. Anderson, is now available online. You can read it here.
This case was a trial decision, the outcome of which was to preserve my client's support support entitlement. His ex-wife was seeking to have his spousal support terminated (or reduced, then terminated soon after).
My client, in his late-50's at the time of trial, had not been able to find significant work since he and his common-law wife separated six years ago. They signed a Separation Agreement in 2009 that required him to make reasonable efforts to find work. Five years later, he was still unemployed, and his ex-wife brought a motion to terminate spousal support on the basis that his efforts to find work were insufficient. Her counsel argued that my client was satisfied to live off her indefinitely, and would never make a reasonable effort to find a job.
In the end, the court ordered that support would continue without a reduction. The reasons are too complicated to explain here (but you can read the Judgment at the link above). Nonetheless, there are a number of lessons we can take away from this case, and I am sharing a few of them below.
1) Gender Doesn't Matter
At least two judges who helped shepherd this case to its conclusion acknowledged that a wife paying spousal support to a husband was not the norm. But those judges also said that it would make no difference to the outcome. That played out at trial as well. The law applying to a "traditional marriage" is applied just the same when the genders are reversed.
2) Marriage vs. Common-Law Doesn't Matter
Unlike the law of property division, there is no difference between how the law of spousal support applies to common-law spouses vs. married spouses.
3) Use the Guidelines
The court in this case found that the husband had not made reasonable efforts to find work. This allowed the court to vary the separation agreement, and even impute income to the Husband. So why didn't the court reduce his support? In my view, it was largely because under the Guidelines, he would have been entitled to even more support than he was getting.
The Spousal Support Advisory Guidelines (SSAG's) were first published in July 2008 after a long development and consultation process. They are at once an academic treatise on the law of spousal support in Canada, and a tool to help lawyers and judges bring certainty to what had been up to that point an often arbitrary process of determining spousal support amounts.
Parliament never enacted the SSAG's as law, and that may be why they are such a nuanced, useful tool for family lawyers and judges. They were largely embraced by Canadian family lawyers right out of the gate, and the courts have been directed to consider them by the Ontario Court of Appeal both on initial applications and variations.
The SSAG's provide formulas for most support scenarios, and easily apply to a marriage like this one . And no matter how the calculations were run, the husband in this case was entitled to more spousal support than he was receiving. A reduction, in this case, was completely out of line with the Guidelines amounts.
Even more importantly, asking for a reduction or termination of the husband's support fundamentally misunderstood one of the core reasons we have spousal support in Canada. This leads to my fourth take-away...
4) Merger Over Time
One theory of why we have spousal support in Canada, especially in longer marriages, is the theory of "financial merger over time." This theory recognizes that the longer two people are together, the more merged their financial lives become. The husband was entitled, if not to an equal standard of living, then at least to receive an amount of spousal support that recognizes the merger that occurred over the previous 25 years, and the expectations that arise from sharing your life with someone for such a long period of time. Olson v. Anderson not only relies on the principle of merger over time, but by quoting extensively from the spousal support advisory guidelines' chapter on that topic, helps elevate the theory from principle to precedent.
Staying in a 25-year marriage, whether common-law or not, is a choice that has serious financial consequences. Anyone separating after a long-term marriage should remember that for better or worse, even long after you are physically separated, you may be financially linked to your former spouse for many more years to come.
This case was a trial decision, the outcome of which was to preserve my client's support support entitlement. His ex-wife was seeking to have his spousal support terminated (or reduced, then terminated soon after).
My client, in his late-50's at the time of trial, had not been able to find significant work since he and his common-law wife separated six years ago. They signed a Separation Agreement in 2009 that required him to make reasonable efforts to find work. Five years later, he was still unemployed, and his ex-wife brought a motion to terminate spousal support on the basis that his efforts to find work were insufficient. Her counsel argued that my client was satisfied to live off her indefinitely, and would never make a reasonable effort to find a job.
In the end, the court ordered that support would continue without a reduction. The reasons are too complicated to explain here (but you can read the Judgment at the link above). Nonetheless, there are a number of lessons we can take away from this case, and I am sharing a few of them below.
1) Gender Doesn't Matter
At least two judges who helped shepherd this case to its conclusion acknowledged that a wife paying spousal support to a husband was not the norm. But those judges also said that it would make no difference to the outcome. That played out at trial as well. The law applying to a "traditional marriage" is applied just the same when the genders are reversed.
2) Marriage vs. Common-Law Doesn't Matter
Unlike the law of property division, there is no difference between how the law of spousal support applies to common-law spouses vs. married spouses.
3) Use the Guidelines
The court in this case found that the husband had not made reasonable efforts to find work. This allowed the court to vary the separation agreement, and even impute income to the Husband. So why didn't the court reduce his support? In my view, it was largely because under the Guidelines, he would have been entitled to even more support than he was getting.
The Spousal Support Advisory Guidelines (SSAG's) were first published in July 2008 after a long development and consultation process. They are at once an academic treatise on the law of spousal support in Canada, and a tool to help lawyers and judges bring certainty to what had been up to that point an often arbitrary process of determining spousal support amounts.
Parliament never enacted the SSAG's as law, and that may be why they are such a nuanced, useful tool for family lawyers and judges. They were largely embraced by Canadian family lawyers right out of the gate, and the courts have been directed to consider them by the Ontario Court of Appeal both on initial applications and variations.
The SSAG's provide formulas for most support scenarios, and easily apply to a marriage like this one . And no matter how the calculations were run, the husband in this case was entitled to more spousal support than he was receiving. A reduction, in this case, was completely out of line with the Guidelines amounts.
Even more importantly, asking for a reduction or termination of the husband's support fundamentally misunderstood one of the core reasons we have spousal support in Canada. This leads to my fourth take-away...
4) Merger Over Time
One theory of why we have spousal support in Canada, especially in longer marriages, is the theory of "financial merger over time." This theory recognizes that the longer two people are together, the more merged their financial lives become. The husband was entitled, if not to an equal standard of living, then at least to receive an amount of spousal support that recognizes the merger that occurred over the previous 25 years, and the expectations that arise from sharing your life with someone for such a long period of time. Olson v. Anderson not only relies on the principle of merger over time, but by quoting extensively from the spousal support advisory guidelines' chapter on that topic, helps elevate the theory from principle to precedent.
Staying in a 25-year marriage, whether common-law or not, is a choice that has serious financial consequences. Anyone separating after a long-term marriage should remember that for better or worse, even long after you are physically separated, you may be financially linked to your former spouse for many more years to come.