WHAT HAPPENS WHEN YOUR EX WON’T WORK?
Judges have tools to decide if support should end, Laurie H. Pawlitza says.
A persistent irritant for spouses obliged to pay spousal support is the recipient spouse who refuses to work.
For the many payors who continue to work hard as they age, the thought of a former spouse receiving support for the privilege of not working makes them see red.
When deciding entitlement, amount and duration of spousal support payments, the Divorce Act requires judges to consider four objectives: the advantages or disadvantages arising from the marriage or its breakdown; the apportionment between spouses of the financial consequences arising from caring for a child, over and above child support; the relief of economic hardship arising from marriage breakdown; and in so far as is practicable, the promotion of the economic selfsufficiency of each spouse within a reasonable period of time.
Most payors want desperately to believe that the Divorce Act objective of self sufficiency requires the recipient to go out and get a job immediately, so that in a few years, the recipient will be weaned from dependence on spousal support and the payor’s obligation will end forever. Anxious payors should know, however, that this is not the case.
The Supreme Court of Canada long ago confirmed that no one of the four objectives of the Act are paramount.
So what does that mean for separating spouses?
In a short relationship without children, it is likely that spousal support will be “transitional,” that is, it will be structured to allow the lower income spouse to the new economic reality of being self-sufficient. Any support payable is likely to terminate within a short time.
For long marriages (of 20 years or more) where spouses separate in their 50s, it is unusual for a court to expect that the recipient will achieve self-sufficiency unless the recipient has been out of the workforce for only a brief period, and there is little income disparity between the spouses. Often, spousal support is indefinite, and is looked at only on the retirement of the payor.
Where the separation has occurred when the spouses are in their mid-40s with children, and one spouse was primarily responsible for household management and childcare, it is also unlikely that the court will order that spousal support terminate at a particular future date. Instead, (despite the Supreme Court of Canada’s caution to the contrary), spousal support is often reviewed three or five years after the final agreement is reached or after a trial. A common reason for a review is to allow the recipient spouse to retrain and get back into the workforce, before deciding support on a long-term basis.
What happens, then, when recipient spouses refuse to return to work, work at something non-remunerative, make bad investments, spend beyond their means or start businesses which fail?
How do courts assess what type of order should be made which would promote self-sufficiency “in so far as practicable?” And what are “reasonable efforts?”
There are few tools available to a judge who is faced with a spouse who has failed to embrace the objective of self-sufficiency.
In limited circumstances, on a review, judges will consider terminating spousal support, if not immediately then after a certain number of years. Justice McDermot in the 2016 case of Morrow v Finch called this option a “kick in the pants to make a claimant spouse go out and get a job.” In deciding what order would promote self-sufficiency, McDermot found that that the wife ought to have “seen the writing on the wall sooner” when she persisted in a horse-breeding business that was clearly failing.
In Yeung v. Silva, the B.C. Supreme Court held in 2016 that spouses must make “prudent financial decisions.” In Yeung, while the wife said she had been “actively searching for full-time employment,” the court found that there was a “dearth of reliable evidence” about this. In fact, the wife wanted to be fully available to drive the parties’ 16-yearold son to and from his activities. The Court in Yeung decided to “step down” the wife’s support in three stages, with support terminating four years after the order was made.
One of the few remaining tools available to judges to promote self sufficiency is to impute income to the recipient spouse, if the recipient spouse is found to be “intentionally underemployed or unemployed.” While the authority to impute income is found under the Child Support Guidelines and is usually applied to payors, judges rely on this provision when recipients appear to be allergic to work.
To impute income to a recipient spouse, the payor must provide some evidence of what the recipient spouse could reasonably earn. The judge’s analysis then takes into account the recipient ‘s age, education, experience, skills, and health, as well as the availability of employment opportunities.
Payors who think that their spousal support obligation ends when their spouse finally “gets a job” should also proceed with caution. In a mid-to-long traditional marriage, even if the recipient spouse has employment, it will rarely result in a termination of spousal support.
The self-sufficiency of a recipient spouse may not mean the end of spousal support in certain divorce cases.