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Digest of the Week — Spousal Support


Rémillard v. Rémillard |
2014 CarswellMan 661 |
Manitoba Court of Appeal

Family law | Support | Spousal support under Divorce Act and provincial statutes | Entitlement | Economic disadvantage of marriage | Traditional marriage

Parties began to cohabit in 1994, married in 1999, and separated in 2010 — Parties' child was born in 2002 with multiple medical challenges and was severely disabled — Wife remained in matrimonial home following separation and provided full-time care to child — Husband's income in 2012 was $180,285 — Trial was held to determine, inter alia, spousal support — Trial judge awarded spousal support of $1,500 per month beginning April 2013, which would decrease by $300 per year until terminated in April 2018 — Wife appealed, inter alia, spousal support award — Appeal allowed — Wife was awarded spousal support of $4,000 per month from date of separation until April 2011, and $3,000 per month thereafter — Wife was entitled to both compensatory and non-compensatory spousal support — Parties' 16-year spousal relationship was close to long-term relationship and was traditional — By agreement, wife had primary care and control of child — Trial judge's analysis focused primarily on wife's needs and her obligation to become self-sufficient, which resulted in award that failed to reflect compensatory support.

Family law | Support | Spousal support under Divorce Act and provincial statutes | Time-limited award | Spouse to become self-sufficient

Parties began to cohabit in 1994, married in 1999, and separated in 2010 — Parties' child was born in 2002 and was severely disabled — After separation, wife provided full-time care to child — Wife began cohabiting with new partner in April 2011 — Trial was held to determine, inter alia, spousal support — Trial judge awarded spousal support of $1,500 per month beginning April 2013, which would decrease by $300 per year until terminated in April 2018 — Trial judge held that wife had obligation to become self supporting, and should do so within reasonable time-frame, such that step-down approach to spousal support was appropriate — Wife appealed, inter alia, spousal support order — Appeal allowed — Wife was awarded spousal support of $4,000 per month from date of separation until April 2011, and $3,000 per month thereafter — Trial judge made palpable and overriding error in finding that wife had advantage of full-time caregivers in house while she worked or did retraining — While extensive homecare was available to wife, it was dependent on child's needs and discretionary approval of health authority — It was not realistic to expect that wife would be able to become self-sufficient in five years, given daily demands of child's needs — This was relatively long-term marriage that involved child who would never gain independence — It was appropriate to award indefinite period of spousal support subject to variation on material change in circumstances or on review in five years.

Family law | Support | Spousal support under Divorce Act and provincial statutes | Determination of spouse's annual income | Imputed income

Parties began to cohabit in 1994, married in 1999, and separated in 2010 — Parties' child was born in 2002 and was severely disabled — Wife provided full-time care to child after separation — Wife began cohabiting with new partner in April 2011 — Trial was held to determine, inter alia, spousal support — Trial judge awarded spousal support of $1,500 per month, reduced by $300 per year until terminated in April 2018 — Trial judge held that wife was intentionally underemployed and imputed income of $25,000 as of April 2012 — Trial judge held that wife had chosen not avail herself of care giving resources available to wife through health authority — Wife appealed, inter alia, spousal support order — Appeal allowed — Wife was awarded spousal support of $4,000 per month from date of separation until April 2011, and $3,000 per month thereafter — Trial judge made palpable and overriding error in finding that wife had advantage of full-time caregivers in house while she worked or did retraining — While extensive homecare was available to wife, it was dependent on child's needs and discretionary approval of health authority — It was not realistic to expect that wife would be able to become self-sufficient in five years, given daily demands of child's needs — Imputation of income was not reasonable.

Family law | Support | Spousal support under Divorce Act and provincial statutes | Quantum of support

Parties began to cohabit in 1994, married in 1999, and separated in 2010 — Parties' child was born in 2002 and was severely disabled — Wife provided full-time care to child after separation and began cohabiting with new partner in April 2011 — Husband's income in 2012 was $180,285 — Trial was held to determine, inter alia, spousal support — Trial judge awarded spousal support of $1,500 per month, reduced by $300 per year until terminated in April 2018 — Trial judge determined that child's monthly needs did not exceed $500 and $700 of monthly child support should be considered as de facto spousal support — Wife appealed, inter alia, spousal support — Appeal allowed — Wife was awarded spousal support of $4,000 per month from date of separation until April 2011, and $3,000 per month thereafter — Using $180,285 for husband's income, no income for wife, monthly child support of $1,441, and spousal relationship of 16 years, Spousal Support Advisory Guidelines showed range of monthly spousal support between $3,868 and $4,879, with midpoint of $4,374 — Trial judge erred in imputing income to wife and finding that she could become self-sufficient in five years — Given that child was entitled to benefit from table amount under the Guidelines, trial judge erred in treating any part of child support as de facto spousal support — While it was relevant consideration that wife lived with new partner who was responsible for half of family's household expenses, it could not overshadow wife's entitlement to compensatory support.

Family law | Support | Spousal support under Divorce Act and provincial 
statutes | Retroactivity of order

Parties began to cohabit in 1994, married in 1999, and separated in 2010 — Parties' child was born in 2002 and was severely disabled — Wife remained in matrimonial home following separation and provided full-time care to child — Husband voluntarily paid majority of expenses related to matrimonial home — Husband's income in 2012 was $180,285 — Trial was held to determine, inter alia, spousal support — Trial judge awarded spousal support of $1,500 per month, reduced by $300 per year until terminated in April 2018, and lump sum payment of $20,800 for "top up" of spousal support owing from separation to April 2013 — Wife appealed, inter alia, spousal support award — Husband cross-appealed retroactive spousal support award — Appeal allowed; cross-appeal dismissed — Wife was awarded spousal support of $4,000 per month from date of separation until April 2011, and $3,000 per month thereafter — Trial judge did not err in principle or misapprehend evidence in finding that wife required support from date of separation — Evidence did not support finding of delay — Wife first advanced spousal support claim several months post-separation and expressly sought retroactive spousal support in her answer — It was up to parties to calculate retroactive support, using amounts awarded and including credit for expenses paid by husband to third parties that benefited wife.
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