Bernie Thibault – June 2018
When your relationship/marriage ended, was your former spouse employed and could he/she support themselves? If so, you may think you’re in the clear and need not worry about paying spousal support. But what happens if your former spouse becomes disabled after separation? Should you be a “safety-net” to your former spouse? In some cases, the answer may be yes.
This situation was considered in Fyfe v. Jouppien, 2011 ONSC 5462 (CanLII). Here are the factors that were considered at paragraph 54 of that decision:
- The starting point for analyzing non-compensatory support claims based on need arising post separation is whether there is evidence during the period prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage relationship itself. Where there is no evidence to rebut this presumption, it may be reasonable to expect that the parties will support each other for a reasonable period of time in the event of need that does not exist at the time of separation but that arises at a later date. [my emphasis added.]
- The existence of mutuality and interdependence prior to separation is not, however, a determinative factor favouring a spousal support obligation in the event of need arising post separation. As the Supreme Court of Canada stated in Moge and Bracklow, all of the objectives underlying a spousal support order must be considered, including the objective of promoting self sufficiency within a reasonable period of time. The question that must be determined is whether, taking into account all of the circumstances of the particular case, it is reasonable on an objective analysis to expect the parties to continue to be “safety nets” for each other in the event of post separation need, and if so, for how long. [my emphasis added.]
- The passage of time may be an important consideration, particularly where the parties both take steps post separation to unravel their inter-dependencies and to effect a clean break from each other. In these circumstances, the mutual obligation of support arising from the marriage itself may wane with the passage of time, and the objective of promoting self sufficiency within a reasonable time frame may come more to the forefront of the analysis. This would include an expectation that former spouses implement plans for their own care in the event of possible disability in the future.[my emphasis added.]
- On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued…
Despite the fact that both parties in the case cited above agreed that there was nothing about the relationship that gave rise to entitlement to support, the applicant was still found to be entitled due to his disability, which occurred several years after separation. The Court did not award payment in that case, because the respondent did not have the ability to pay. In Firth v. Firth, 2012 BCSC 857 (CanLII), the applicant was awarded support after making an application 8 years post-separation; the parties were married for only 10 years. Understandably, the thought that you might be required to support your former spouse so long after separation (when you never thought it would be an issue), would be somewhat disconcerting.
It’s not all doom and gloom however; so far, this line of thinking appears to only have been accepted and applied in British Columbia and Ontario. Those decisions are not binding on Nova Scotia Courts. However, you should be cautioned that these cases could still be used to persuade a Judge in Nova Scotia to order a similar remedy if the situation is appropriate.
If you don’t want to be the “test case” for this type of situation, then you should be sure to deal with this issue as early as possible after separation. At MDW Law, we will assess your situation and if the circumstances are appropriate, we will negotiate an agreement with the interest of terminating or limiting your exposure to an unforeseen spousal support obligation arising years after your separation.