Having to pay spousal support can be a difficult pill to swallow; especially if it appears that your spouse is not attempting to support herself or himself.
The case of Waye v. Cook, 2015 ONSC 7151 emphasizes that a recipient of spousal support has an obligation to support himself or herself, even if he or she is incapable of earning as much as his or her spouse: The recipient spouse has to try.
The parties were married for 29 years when they separated in 2003.
In 1998, the husband obtained a position in Berlin, Germany. The wife gave up her full-time job where she had been earning $50,000.00 to follow him to Berlin. She was unable to work in Berlin.
In 2001 the parties moved again when the husband obtained a position in London, England. The wife was again unable to work.
At the time of separation in 2003, the husband considered himself to be retired.
The wife started a court action for spousal support in August 2003. The husband took the position that no spousal support should be awarded.
In 2011, the wife learned that the husband came out of retirement in 2006 because he had run out of money.
The wife brought a motion for temporary spousal support in 2012, but the motion was not heard until June 2013. No spousal support was ordered as the husband had lost his employment in January 2013. The husband did not reveal at that time that he had interviewed for a new position before the motion was heard and signed an employment contract two days before the motion decision was released.
By the date of the trial, both parties had depleted the significant assets they had accumulated at separation.
Trial Judge’s Decision
The trial judge noted that the wife had only had full-time employment for five of the years that the parties cohabited and accepted that there were limited opportunities for the wife to return to work in her field because she had been out of the workforce for years. The wife had found some work in her field after separation, but at the time of trial was only receiving CPP in the amount of $470.00 per month.
However, the trial judge held that if the husband was expected to support the wife from employment income at age 66, it was also reasonable for the wife to secure some type of employment. Accordingly, the trial judge attributed $25,000.00 to the wife which together with her CPP income resulted in a total income of $30,000.00.
Based on the $30,000.00 and the husband’s income at the time of $96,000.00, the judge ordered that the husband pay the wife $2,200.00 per month.
While the wife had requested a spousal support award retroactive to 2003, the trial judge relied on the fact that the husband was not employed until 2006, the fact that there was no evidence that the wife disclosed the little work that she had been able to obtain in her field after separation and the fact that the husband had no significant assets to pay spousal support retroactively to 2003 in only making her award retroactive to March 2012. This resulted in the husband owing to the wife $53,800.00 in arrears.
The wife appealed.
In upholding the trial judge’s decision to attribute income to the wife, the Court of Appeal stated the following at paragraph 14:
In my view the trial judge’s finding that it is reasonable to expect the appellant to find some employment, even though she was 65 years of age, reflects the appellant’s continuing obligation to contribute in a reasonable way to her own support…
The wife's argument that the trial judge should have awarded her a higher amount of spousal support to compensate her for sacrificing her career in the marriage was also dismissed. The Court of Appeal noted that the trial judge did not deny that the wife was economically disadvantaged by leaving her career and by the other responsibilities that she assumed during the marriage, but that the trial judge was also aware that both parties were over the age of 65 and had very little in the way of assets.
The Court of Appeal also upheld the commencement date for post-separation support noting that the trial judge’s decision to commence the post-separation support prior to the motion date in 2013 addressed the husband’s misconduct in not disclosing that he had interviewed for a new position before the motion was heard and signed an employment contract two days before the motion decision was released.
In addition, the Court of Appeal held that the wife should have pursued her spousal support claim promptly as the passage of so much time had meant that an order for spousal support starting on the date of commencement of the proceedings in 2003 would be akin to a retroactive spousal support award which would be a windfall for the wife and cause financial hardship for the husband.
The Waye v. Cook judgment emphasizes the importance of pursuing claims for spousal support promptly, the continuing obligation of spousal support recipients to contribute to their own support, and how critical it is to provide full and frank disclosure regarding your financial situation.
Erika R. Jacobs