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Disputes under the Divorce Act

May 14, 2021

Ontario

,

Canada

Issue

What constitutes “co-habiting” with a new partner for the purpose of meeting the material change test under a separation agreement?

Conclusion

Once a material change in circumstances has been established, the variation order should take account of the material changes in circumstances, and consider the existence of the separation agreement and its terms as a relevant factor. Change in circumstances must be material, meaning that if known at the time it would have resulted in different terms. (Crossley-Chaumont v. Royer)

A distinction must be made between a spouse-like relationship and a serious relationship that might ripen into a spousal relationship, but has not yet. A serious relationship that might ripen into a spousal relationship should not be used in calculating spousal support. If the serious relationship that might ripen into a spousal relationship indeed moves to a spousal relationship, it will not give rise to a legally-recognized change in circumstances so as to result in a potential reduction in spousal support. (Watson v Watson)

Factors that Court considers in deciding whether to make a variation in spousal support are:

1. material change (that is, change in incomes by the parties);
2. the spouse receiving spousal support’s self-sufficiency (that is, employment status);
3. the Divorce Act’s other objectives relating to the economic advantages or disadvantages to the spouse arising on marriage breakdown and the apportioning between the spouses of any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
4. childcare responsibilities;
5. the health of the spouse receiving spousal support;
6. job opportunities that the spouse receiving spousal support could fulfill;
7. the circumstances of cohabitating with a new partner (when the spouse receiving spousal support is cohabitating);
8. both spouses’ lifestyles (in terms of being similar to each other); and
9. the duration of the already existing spousal support.

Cohabitation with another does not rule out entitlement to spousal support, especially when the duration of the new relationship has not created a new entitlement. Cohabitation lasting for 10 months does not rule out entitlement to spousal support. (Young v. O'Neil)

The mere fact that a spouse is still living with her partner 14 years after a divorce order that recognized that the spouse was living with the same partner for three years did not automatically constitute a material change in circumstances. When a divorce order sets out no specific timelines by which continued cohabitation would constitute a “material change”, or justify some automatic review or termination, a Court cannot regard the continued cohabitation as a “material change”, or use the continued cohabitation to justify automatic review or termination of spousal support. Re-partnering by a dependent spousal does not necessarily terminate entitlement, particularly when that entitlement is (in whole or in part) compensatory. (Fritsch v. Fritsch)

When one spouse has a substantial drop in income, the other spouse has had commenced a new relationship, two of the four children have left the home and the other spouse is no longer supporting them, and the other spouse has been able to find reasonable employment. the Court may be satisfied that there has been a material change in circumstances as set out in the parties’ divorce agreement such that the Court could consider a variation of the order. Spousal support need not be based upon the combined household income of the spouse receiving spousal support and the spouse's new partner to whom the spouse is not married. Spousal support is not only based on need but on compensation to a spouse for the lost opportunity to earn income. Spousal support's lasting for only four years after a 21-year marriage may be held by a Court to be too short, even when the spouse receiving spousal support lives with a new partner to whom marriage has not occurred, when the spouse receiving spousal support stayed at home with the children, had only part-time employment as she made efforts to support herself, and where the long marriage made it difficult for the spouse receiving spousal support to re-enter the workforce. (Sheridan v. Sheridan)

When the spouse receiving spousal support, during the marriage, was adversely affected in earnings and earning potential by childcare responsibilities, to the extent that at the time of trial child care responsibilities (such as are associated with children's disability) continue to curtail the earning capacity, making it next to impossible for the spouse receiving spousal support to achieve economic self-sufficiency, of the spouse receiving spousal support and to enhance the other spouse's earning capacity, then a Court may find that the spouse receiving spousal support continues to be entitled to spousal support even when the spouse receiving spousal support has lived with a new partner (with whom no marriage has been formed) for two and a half years, has bought a house with said partner, and shares expenses related to property taxes and groceries with the partner. This is because a spouse's repartnering, while relevant to assessing the circumstances for assessing spousal support, does not necessarily eliminate the other spouse's ongoing benefit and the ongoing detriment to the spouse receiving spousal support. (Wegler v. Wegler)

When a spouse receiving spousal support actively conceals from the court that there is a live-in partner who has been involved in the life of the spouse receiving spousal support for at least one year before a court proceeding, then a Court may decline to order the spouse receiving spousal support to receive as much spousal support as the spouse receiving spousal support would otherwise be entitled to. (Ryan v. Ryan)

Law

The case Crossley-Chaumont v. Royer, 2020 ONSC 7491 (CanLII) involved parties who were married, seeking variation of spousal support.

The Court summarized Canadian jurisprudence as meaning that once a material change in circumstances has been established, the variation order should take account of the material changes in circumstances, and consider the existence of the separation agreement and its terms as a relevant factor. The Court further noted that Canadian jurisprudence has established that the change in circumstances must be material, meaning that if known at the time it would have resulted in different terms.

[27] As the parties were married, variation of spousal support is governed by the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, and in particular section 17. Per subsection 17(4.1), before the court can make a variation order it must be satisfied that there has been a change in the condition, means, needs or other circumstances of either former spouse since making the last spousal support order. Once that has been met, the objectives of a variation order are set out in subsection 17(7) which reads as follows:

17(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[28] The four section 17(7) objectives can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown: see Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 at paragraph 78, and Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 at paragraph 21. Family law can only play a limited role in alleviating those economic consequences (Moge v. Moge at paragraph 76). No one objective has greater weight or importance than another (L.M.P. v. L.S., 2011 SCC 64 at paragraph 49).

[29] As an overview, the approach to be taken was set out by the Supreme Court of Canada in L.M.P. v. L.S. at paragraph 50 as follows:

50. In short, once a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7), . . . [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor” (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.

Change in Circumstances

[30] The change in circumstances must be material, meaning that if known at the time it would have resulted in different terms: L.M.P. at paragraph 32.

The case Watson v Watson, 2015 ONSC 2091 (CanLII) involved equalization; spousal support; child support; access; and a variety of miscellaneous issues. The respondent husband asked that the Court take into account what he said was the applicant wife’s “partnering” with one Thomas Beamon. He submitted that there was strong circumstantial evidence that they were living together, even though the applicant denied it. The applicant acknowledged during her testimony that Mr. Beamon had slept at her home nearly every day for a week prior to the trial. She acknowledged that Mr. Beamon has access to the matrimonial home and could come and go as and when he pleased by using a password. She acknowledged that the furniture for Mr. Beamon’s children had been moved into one of the secondary bedrooms in the home. She acknowledged that Mr. Beamon kept at least some of his clothes at the home. She acknowledged that some of his furniture was stored at the matrimonial home. She admitted that he ate a lot of his meals there. She also acknowledged that she, her son, Mr. Beamon and his children had taken a number of family vacations together. The respondent submitted that unless re-partnering with Mr. Beamon was taken into account, it could not be taken into account later because it was clear that the relationship is at a stage where it was likely, or at least clearly possible, that it may ripen into a stable relationship.

The Court was not prepared to find, on the evidence presented, that the applicant and Mr. Beamon were in a spouse-like relationship. The Court held that at most, the evidence suggested that they were in a serious relationship that might ripen into a spousal relationship, but had not happened. Accordingly, the Court was not prepared to take into account the applicant’s relationship with Mr. Beamon in calculating spousal support. The Court accepted that the respondent was in the "unenviable position" where it was quite possible, even probable, that the relationship would ripen into something stable. As such, that possibility was clearly foreseeable. The Court noted that binding jurisprudence has established that if the relationship indeed moves to a spousal relationship, it will not give rise to a legally-recognized change in circumstances so as to result in a potential reduction in spousal support. The Court also noted that there was no evidence that Mr. Beamon contributed anything to the applicant’s living expenses.

[1] The trial in this matrimonial case primarily involved equalization; spousal support; child support; access; and a variety of miscellaneous issues.
[…]

[53] The respondent asks that I take into account what he says is the applicant’s “partnering” with Thomas Beamon. He submits that there is strong circumstantial evidence that they are living together, even though the applicant denies it.

[54] The applicant acknowledged during her testimony that Mr. Beamon had slept at her home nearly every day for a week prior to the trial. She acknowledged that Mr. Beamon has access to the matrimonial home and can come and go as and when he pleases by using a password. She acknowledged that the furniture for Mr. Beamon’s children has been moved into one of the secondary bedrooms in the home. She acknowledged that Mr. Beamon keeps at least some of his clothes at the home. She acknowledged that some of his furniture is stored at the matrimonial home. She admitted that he eats a lot of his meals there. She also acknowledged that she, Brock, Mr. Beamon and his children have taken a number of family vacations together.

[55] The respondent submits that unless re-partnering with Mr. Beamon is taken into account now, it cannot be taken into account later because it is clear that the relationship is at a stage where it is likely, or at least clearly possible, that it may ripen into a stable relationship. He notes that that is the inevitable result of L.G. v. G.B, 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370; and Bhupal v. Bhupal (2008), 2008 CanLII 53129 (ON SC), 92 O.R. (3d) 211 (S.C.J.); affirmed 2009 ONCA 521 (CanLII), 97 O.R. (3d) 230 (C.A.).

[56] It should be noted that the respondent had placed Mr. Beamon under subpoena, but he elected to not call him at the trial.

[57] I am not prepared to find, on the evidence presented, that the applicant and Mr. Beamon are in a spouse-like relationship. At most, the evidence suggests that they are in a serious relationship that may ripen into a spousal relationship, but has not yet done so. Accordingly, I am not prepared to take into account the applicant’s relationship with Mr. Beamon in calculating spousal support.

[58] I have sympathy with the respondent’s position. At this point, he is in the unenviable position where it is quite possible, even probable, that the relationship will ripen into something stable. As such, that possibility is clearly foreseeable. According to L.G. v. G.B., supra, which is based on the test in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, if the relationship indeed moves to a spousal relationship, it will not give rise to a legally-recognized change in circumstances so as to result in a potential reduction in spousal support. While some may consider this to be unfair, it is nevertheless the result of binding authority. At this point, there is no evidence that Mr. Beamon contributes anything to the applicant’s living expenses.

Young v. O'Neil, 2003 CanLII 2370 (ON SC) was a case primarily about variation of spousal support, specifically, quantum and duration pursuant to the Divorce Act R.S.C. 1985, c.3 (2nd Supp.) (“Act”). The couple’s September, 1997 separation agreement included joint custody and payments to the respondent of spousal and child support. Regarding spousal support, the applicant agreed to pay $1,200 on each of the 15th and last day of each month, indexed to C.P.P. (Ottawa) and life insured. The divorce judgment incorporated some terms from the separation agreement. The applicant husband’s position was that the marriage lasted 14 years and he had already paid spousal support for over eight years. He submitted that he had fulfilled his obligation to help the respondent over the financial shock of separation. The applicant asserted that his decline in income was a material change justifying variation. The applicant asserted that since the respondent cohabited with a new partner since April 2001 and cared for his children on a part-time basis, that partner now has the financial responsibility to provide for the respondent. The respondent does not deny she has cohabited with her new partner, but submitted that this cohabitation should not be a reason to terminate spousal support. At the time of the application, the period of cohabitation was 10 months. The applicant invited the Court to impute income to the respondent because she was intentionally underemployed and possibly in order to reflect the benefit of the respondent having a new partner to share expenses.

The Court was not prepared to impute income. The Court was not satisfied that the respondent was intentionally underemployed. The evidence was that she only recently obtained any special training. Before that she stayed at home with the concurrence of the applicant for fourteen and a half years to raise the children, followed by some periods of full and part-time employment. Some medical information suggested that she could not now work full-time. Further, the Court held that her new partner had no legal obligation to provide for the respondent. The Court noted that rather than impute income for the fact they share expenses, the preferred approach was to determine how that sharing impacted her needs. There were changes which the court found were sufficient, when taken in combination, to make a variation. The factors that the Court considered in deciding whether to make a variation were:

1. material change (that is, change in incomes by the parties);
2. the spouse receiving spousal support’s self-sufficiency (that is, employment status);
3. the Divorce Act’s other objectives relating to the economic advantages or disadvantages to the spouse arising on marriage breakdown and the apportioning between the spouses of any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
4. childcare responsibilities;
5. the health of the spouse receiving spousal support;
6. job opportunities that the spouse receiving spousal support could fulfill;
7. the circumstances of cohabitating with a new partner (when the spouse receiving spousal support is cohabitating);
8. both spouses’ lifestyles (in terms of being similar to each other); and
9. the duration of the already existing spousal support.

The Court held that cohabitation with another does not rule out entitlement to spousal support, especially when the duration of the new relationship has not created a new entitlement. The Court was satisfied that the respondent had need, and her lifestyle was comparable to her former husband's. Having no income she was not self-sufficient; she assumed duties of care-giver to their children that continue even today. Her health prevents full-time employment and her cohabitation is not of the required length to provide her with entitlement from another. These circumstances convinced the Court that the pattern of economic dependence continued and while the Court admitted that it seemed odd to say an application after eight years was “premature”, this court was satisfied that the respondent still had an entitlement to spousal support from the applicant.

[1] […] the main issue in this case is variation of spousal support, specifically, quantum and duration pursuant to the Divorce Act R.S.C. 1985, c.3 (2nd Supp.) (“Act”).
[…]

[4] The couple’s September, 1997 separation agreement included joint custody and payments to the respondent of spousal and child support. Regarding spousal support, the applicant agreed to pay $1,200 on each of the 15th and last day of each month, indexed to C.P.P. (Ottawa) and life insured. The divorce judgment incorporated some terms from the separation agreement.
[…]

The Applicant’s Position
Spousal Support

[14]

(i) The marriage lasted 14 years and he has already paid spousal support for over eight years. He submits he has fulfilled his obligation to help the respondent over the financial shock of separation.
(ii) He argues not only has the respondent an obligation to become self-sufficient but given she was employed on a full time basis for three of the past four years, she in fact has achieved self-sufficiency.
(iii) He deposes the respondent has introduced little evidence that she actively sought employment since October, 2001. The applicant presented newspaper advertisements showing there have been jobs available.
(iv) He submits if the respondent is self-employed as a business and personnel consultant it would be reasonable to expect her to file a business plan, budget and financial statement because there must be some expectation of profit. She has not presented this information.
(v) Further, because the respondent’s child care responsibilities have lessened substantially over the past eight years of separation she has more time to do what it takes to become self-sufficient.
(vi) The respondent claims she cannot work full time as the result of a January, 1994 motor vehicle accident. It is the applicant’s position that accident had nothing to do with their subsequent separation and divorce. Also, the respondent has not provided medical evidence supporting a diagnosis of post traumatic stress disorder which she says is a result of the accident.
(vii) The applicant asserts that since the respondent has cohabited with a new partner since April 2001 and cared for his children on a part-time basis, that partner now has the financial responsibility to provide for the respondent. The respondent states caring for the children does not inhibit her activities to find employment.
(viii) The respondent now enjoys a better lifestyle than the applicant can afford – she lives in a more expensive house, drives a newer, more expensive car, and can vacation in her partner’s summer cottage. In short, she does not require support.
(ix) The respondent has overstated her expenses which affects her credibility.
(x) In October 2001 Morin, J. found her income to be $38,000 annually in denying her motion to increase spousal support. The applicant submits this court should find the respondent’s average annual income to be $37,114 and certainly not less than its $29,733 average over the past six years.
(xi) The applicant submits his average adjusted annual income is $95,322, not $103,000 nor the $120,000 suggested by the respondent. He submits his income should be adjusted downwards because the $1,000 monthly extra shown on his financial statement is an allowance for automobile expense and rent and is not a taxable benefit.
(xii) Finally, he argues he does not have the required ability to pay spousal support if the respondent does not contribute to the expected post-secondary expenses of James and in the future those of Jenna. He will be required to shoulder the entire burden of these special expenses subject to what the children can contribute.
[…]

(ix) The respondent does not deny she has cohabited with her new partner since April 1, 2002, but submits this cohabitation should not be a reason to terminate spousal support.
[…]

[30] The applicant invites the court to impute income to the respondent. Pursuant to section 19 of the Guidelines, a court has a broad discretion to do so. Presumably, the argument for the imputing is the applicant believes the respondent is intentionally unemployed given she was employed full-time for almost three years after separation. Additionally, but not pleaded in so many words, the applicant would have the court attribute income to reflect the benefit of the respondent having a new partner to share expenses.

[31] The court is not prepared to impute income. The court is not satisfied the respondent is intentionally underemployed. The evidence is she only recently obtained any special training. Before that she stayed at home with the concurrence of the applicant for fourteen and a half years to raise the children, followed by some periods of full and part-time employment. There is some medical information to suggest she cannot now work full-time. By starting her own business, she has some control over the hours she works and hopefully her present networking with potential clients will pay off. The court accepts her position that she desires to achieve financial independence. Further, the new partner has no legal obligation to provide for the respondent. Rather than impute income for the fact they share expenses, the preferred approach is to determine how that sharing impacts on her needs. This will be examined when discussing spousal support.
[…]

[41] The applicant requests he be relieved from paying spousal support effective October 1, 2002 for the reasons set out earlier. The respondent submits the court should not discontinue spousal support for the reasons she has given. As well, the separation agreement and the details of the various court orders have been set out. Although neither side referred to it during their submissions, their separation agreement contained a clause that the respondent was to become self-supporting as soon as reasonably possible.

Material Change

[42] The last order which dealt with spousal support in a substantial way was the order of Morin, J. dated October 5, 2001. It continued spousal support of $250 twice monthly. The applicant’s income was $103,000 and the respondent’s $38,000 annually. Has there been a material change in circumstances since that order?

[43] The respondent lost her employment October 15, 2001. This court has found her 2001 “after job loss income” to be $35,284. This court rejects the respondent’s request to increase spousal support effective October 1, 2001 on the basis there is not a material change in her income or circumstances for that year.

[44] In 2002 there are changes which the court finds are sufficient, when taken in combination, to be considered material and to found a variation. First, the applicant’s income decreases from $103,000 to $96,000, the respondent’s income decreases from $35,284 to $14,100, and the respondent shares expenses as of October 1, 2002 with her new partner.
[…]

[46] The applicant argues the respondent is self-sufficient, having been employed full time for three of the eight years following separation.

[47] It is often said that “timing is everything”. At the time of Morin, J.’s order the respondent was employed; on January 24, 2003 when this variation proceeding was commenced by the applicant the respondent was unemployed. The court is satisfied she was not self-sufficient on that date nor is she now, receiving only the Child Tax Benefit of $113 monthly.

Other objectives

[48] The Supreme Court of Canada in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14, held all objectives of s.15.2(6) of the Act and not just self-sufficiency must be addressed. The other objectives relate to the economic advantages or disadvantages to the spouse arising on marriage breakdown and the apportioning between the spouses of any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage. Those objectives have been considered by the parties in their separation agreement and by the previous orders dealing with the issue of spousal support. To date this has resulted in the applicant paying spousal support.

[49] Section 17(7) of the Act requires the court to examine all the same objectives of spousal support at the time of variation as had been observed when the agreement/order was first made. In addition s.17(4.1) of the Act allows the court to consider whether there has been a change in the condition, means, needs, and other circumstances of the former spouse since the making of the order.

[50] Many authorities interpreting Canada’s Divorce Act now tend to compensate the child-care giving spouse who has sacrificed career opportunities. (See Moge v. Moge (1992), 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345.) This court has no evidence here of what those career opportunities for the respondent might have been, or what compensation is fair. In any event, it seems clear that this 14 year cohabitation was sufficiently long enough to create a relationship in which the respondent was financially dependent upon the applicant. Courts suggest that dependency should be addressed before support is terminated. See Moge v. Moge, supra.

[51] What conditions, means, or other circumstances convince the court the respondent’s economic dependence on the applicant continues to exist?

Child Care

[52] By arguing the respondent’s child-care responsibilities have lessened, the applicant is lending support to the respondent’s argument that she was the primary care-giver. Today’s child-care responsibilities are different, given Kristopher is independent, James resides with his father and only Jenna still remains with her mother. Although not quite age 40 at the date of separation, a fact that suggests she was then capable of entering the work force, there was a significant period following separation during which the respondent had to juggle child-care along with her attempts to find a position and then remain employed. She continues to be involved with Jenna today.

[53] The court is satisfied both parties continue to have significant although different child-care responsibilities.

Sickness

[54] In addition to the pattern of economic dependency, there is the added factor that the respondent’s health deteriorated while she cohabited with the applicant.

[55] The court has no evidence other than the respondent’s deposing she has a post-traumatic stress disorder. Her doctor provides his opinion that the respondent cannot work full time. While it would have been helpful to have a more complete medical picture, the court is satisfied the respondent’s health is a factor to be considered.

Job Opportunities

[56] As for the advertised employment opportunities, the court has no evidence the respondent is qualified to fill them.

Co-habitation

[57] Cohabitation with another does not rule out entitlement to spousal support, especially when the duration of the new relationship has not created a new entitlement. At the time of the application, the period of cohabitation was only 10 months.

[58] It is admitted the respondent has a new partner and they share expenses. The respondent assists her new partner in care-giving for his children when the children enjoy access with them. Despite her assertions this care-giving does not affect her efforts to build a business, the court suspects the child-care coupled with her health concerns has some bearing on her ability to work. For this reason it is reasonable to expect the new partner with his annual income of ninety to one hundred thousand dollars to contribute to her expenses and financial well being and in fact he does, even though a legal obligation to provide support based on cohabitation is absent.

Lifestyle

[59] The applicant submits the respondent’s lifestyle is better than his. The respondent submits her lifestyle is no different than what they enjoyed during marriage. The respondent’s comments on their “retirement home” and travelling were not disputed and convince the court this couple enjoyed a comfortable lifestyle. Both parties are entitled to a standard of living after separation which while comparative to each other is initially, in reality, lower than what they enjoyed during marriage. It is difficult to maintain the same lifestyle when costs are increased to maintain two households rather than one unless there has been a corresponding increase in income. That increase in income has not occurred here.

[60] The applicant equates the respondent’s staying at home – a more expensive home, driving a more expensive car, with lesser child care responsibilities as indicative of a better lifestyle. Further, the applicant claims his lifestyle is “lower” because he must work and his money goes to pay child support, particularly special expenses. The respondent’s “better lifestyle” may be more illusionary than real. When the most recent financial statements of the parties are compared on the essential items of housing, food, clothing and transportation, the applicant spends $4,017 monthly; the respondent $3,878. The applicant’s monthly income is $8,000; the respondent’s $113. The applicant’s total monthly expenses are $9,014; the respondent’s $6,201. The respondent’s health care costs are five times the applicant’s. The applicant contributes $1,125 monthly for RRSPs, the respondent, zero. Even discounting the respondent’s housing and transportation expenses, the court is satisfied the respondent has need. That need is not the total responsibility of her new partner.

Duration

[61] Significant time has elapsed since separation during which the applicant has supported the respondent. It is tempting to seize upon this factor, and terminate support, especially since the separation agreement contained the provision the wife was to become self-sufficient as soon as reasonably possible. The fact the respondent had not achieved self-sufficiency during eight years of payments must be weighed with the other objectives of spousal support.

[62] In Canada, there are no statutory spousal support guidelines that establish the period during which spousal support is paid.

[63] Rather, s. 15.2 of the Act allows the court to order payment of an amount the court thinks reasonable for a definite or indefinite time or until a specified event occurs and the court may impose terms, conditions or restrictions after taking into account the conditions, means and other circumstances of each spouse including the length of time the spouses cohabited, the functions performed during cohabitation, and any order, agreement or arrangement relating to support.
[…]

[65] In summary, the court is satisfied the respondent has need, and their lifestyles are comparable. Having no income she is not self-sufficient; she assumed duties of care-giver to their children that continue even today. Her health prevents full-time employment and her co-habitation is not of the required length to provide her with entitlement from another. These are the circumstances which convince the court the pattern of economic dependence continues and while it seems odd to say an application after eight years is “premature”, this court is satisfied the respondent still has an entitlement to spousal support from the applicant.

Fritsch v. Fritsch, 2008 CanLII 67897 (ON SC) was a motion by the respondent husband to terminate the spousal support provisions of the order of Justice Czutrin dated March 26, 1997. Justice Czutrin had held that both parties had made inadequate disclosure; that the Respondent’s failure to make disclosure had come in spite of specific requests by counsel for financial information; that the respondent’s evidence had not contradicted the applicant’s characterization that this was a traditional marriage in which he was the main economic provider; that as of 1997 the applicant had been living in an unmarried relationship with another man for approximately three years, and she was obtaining some financial benefit from that cohabitation; that no need for support was demonstrated on the Applicant’s financial statement, and financial difficulty had been created by the applicant dissipating her assets from the funds received in the property settlement; that based on recent earnings, the Respondent’s income was deemed to be $57,000.00, arising from skills and work experience he obtained during cohabitation; that “because of the functions performed during the cohabitation and marriage the applicant was economically disadvantaged and the respondent economically advantaged”; and that the Applicant was entitled to spousal support. The respondent’s counsel argued the applicant was still living with the same partner, and after 17 years together there should be a presumption that they shared a permanent economic unit, with the result that any “dependency” upon the respondent had been extinguished. the respondent’s counsel's attempted to draw the distinction that at the three year stage which existed in 1997 the applicant’s live-in relationship was “embryonic” but after 17 years it was “permanent”.

The Court held that the mere fact that the applicant was still living with her partner did not automatically constitute a material change in circumstances. The Court responded to the respondent’s counsel's attempt to draw the distinction that at the three year stage which existed in 1997 the Applicant’s live-in relationship was “embryonic” but after 17 years it was “permanent” by noting that the existing order set out no specific timelines by which continued cohabitation would constitute a “material change”, or justify some automatic review or termination. The Court accepted jurisprudence holding that re-partnering by a dependent spousal does not necessarily terminate entitlement, particularly when that entitlement is (in whole or in part) compensatory as described. The Court noted that the applicant’s financial participation in a second long-term relationship had in many ways been defined and limited by the economic disadvantage she experienced in her marriage to the respondent. The Court held that the only real change related to the comparative income levels of the parties.

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