VARYING SPOUSAL SUPPORT

Jan 16 2015

Gray v Gray, 2014 ONCA 659

This case addresses the issue of varying spousal support.

Background

The parties were married in June 1980. There were four children of the marriage. The parties separated either in December 1994, when, according to Mr. Gray, they ceased to be in a conjugal relationship, or in July 1996, when Mr. Gray served Ms. Gray with a petition for a divorce. Ms. Gray had not worked out of the home “since she was admitted to the hospital for a suspected heart attack on December 31, 1994” (paragraph 8).

The Respondent in the Appeal originally brought a motion to terminate his obligation to pay spousal support. The sole issue is whether “the spousal support ordered by the motion judge was adequate in light of the law as applied to the facts” (paragraph 21).

Analysis

The Ontario Court of Appeal agreed with the motion judge that Ms. Gray was entitled to spousal support on a needs basis. As stated by the Court of Appeal, “Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership” (paragraph 27). Further, the Appellate Court found at paragraph 27:

Courts ought to be guided in party by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.

In some circumstances, as found in Bracklow v Bracklow, [1999] 1 SCR 420, “the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less”.

The Appellate Court found that the motion judge’s determination of Ms. Gray’s income was inaccurate. As such, the Court of Appeal accepted that Appellant’s calculation of Ms. Gray’s income “at approximately $33,500 per year” (paragraph 33). The Court found that Ms. Gray had reasonable expenditures “relating to housing, utilities and groceries. Her personal and health related expenses are modest” (paragraph 34).

The Court of Appeal continued its analysis by considering whether there was a compensatory basis for spousal support. The Court held that, “the purpose of compensatory support is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown” (paragraph 38). As such, the Court found that the “evidence in this case supports an entitlement to compensatory support” (paragraph 39).

After finding the above, the Court the considered the application of the Spousal Support Advisory Guidelines. The Court found that the Spousal Support Advisory Guidelines are “neither legislated, nor binding. However they are a useful tool with which to measure the quantum and duration of spousal support” (paragraph 42). Further, the Guidelines expressly provide that it “should be possible for either spouse to apply to cross over from the ‘with child support’ formula to the ‘without child support’ formula, to affect the amount of spousal support ordered” (paragraph 43).

After concluding that Ms. Gray’s income was approximately $33,500 per annum and Mr. Gray’s income was approximately $169,500 per annum for the purposes of calculating support, the court found that the Spousal Support Advisory Guidelines provides a range for spousal support between $2,720 to $3,627 per month.

Lastly, the Court of Appeal found that for a 16 year marriage the Spousal Support Advisory Guidelines suggests duration of 8 to 16 years for support. The Appellate Court, however, agreed with the motion judge in finding that Ms. Gray continues to need support, based on her income and precarious health. As such, the Court held that “support ought to be indefinite” in duration until “a review occurs as a result of a material change in circumstance” (paragraph 49).

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