Support may not end when ex remarries

Most support payors assume that when their former spouse re-partners, their support payments will end. But as a case that recently came before the B.C. Supreme Court shows, that isn’t necessarily the case.

Under the Divorce Act, a court order for support can be changed if there is a “material change in circumstances.” When separated spouses enter into a separation agreement, they often negotiate their own terms, adding certain events triggering a “material change” or a support termination.

That is what the former spouses chose to do in the case of MHW v. DKW, which came to the B.C. Supreme Court in June of this year.

In 2012, the terms agreed to by the spouses were included in a consent court order, which said that either party could apply for a determination of spousal support “if any” if there was a material change in circumstances or “on or after” Jan. 1, 2021. The spouses’ agreement also specifically adjusted spousal support as the children grew up and child support reduced. Finally, their agreement sheltered part of the husband’s income from future adjustments to spousal support.

By 2019, the former husband, a lawyer, was 63 and earning over $600,000 a year; the spousal support of about $9,400 per month was based on the husband’s 2012 income of $490,000. His former wife was now 60 and had remarried a man making $350,000. She was on a disability pension. Her income, other than spousal support, was $22,000.

During their 15-year marriage, MHW and his wife parented four children: two from the wife’s former marriage and two born of their relationship. By the time Justice Nathan Smith heard the variation application in 2019, they had been separated for nine years; the former husband had paid spousal and child support since separation. When the application was heard, the parties’ youngest child was about to start university and aside from those expenses, MHW’s child support obligations were ending.

The separation agreement the parties entered into said among other things, that “the Wife was a stay-at-home mother, returning to work on a part-time basis as a legal assistant toward the end of

the marriage. She has been diagnosed with rheumatoid arthritis which has rendered her unable to work since June, 2010.”

The husband asked the B.C. Supreme Court to terminate his former wife’s spousal support because of the wife’s remarriage, saying that the wife had a net worth in excess of his, that he had to prepare for his retirement, and that he now lived a less lavish lifestyle than the wife.

In deciding the matter, Justice Smith considered the meaning of a “material change,” finding that there is a material change only if the change is “substantial, unforeseen and of a continuing nature.” While Justice Smith confirmed remarriage is not automatically a material change, Justice Smith found that it was a “material change” in this case.

However, a material change does not necessarily mean that the amount of spousal support changes or that support ends. The court must first consider the nature of the spousal support order made.

Spousal support can be needsbased, or compensatory in nature. Compensatory support arises when, as a result of the roles during the marriage, one spouse has suffered economic disadvantage or has conferred an economic advantage on the other. This usually happens as a result of sacrificed career opportunities or post-separation obligations related to children. Support based on compensation is designed to provide for an equitable sharing of the economic consequences of the marriage.

Needs-based support simply means that the needs of the recipient spouse after separation are more appropriately met by the former spouse than the government. In most cases, such as MHW, support can have both a needs-based and a compensatory aspect.

Justice Smith referred to earlier case law about the effect of remarriage on a needs-based claim, saying that the “burden does not shift in its entirety at the moment of remarriage, but it begins to. The longer the subsequent marriage, the greater the obligation of the new spouse for the needs of his or her partner.”

The thorny question in MHW was of course, whether the former wife’s compensatory claim had been fulfilled at the time of the application.

In looking at the evidence, Justice Smith confirmed that the purpose of the former wife’s support payments were mainly compensatory in nature. Justice Smith then considered the parties’ respective standards of living and found that even if the former wife’s lifestyle currently exceeded her lifestyle during the marriage, without support, she would only have $22,000 annually to meet those expenses, which would then mean her lifestyle would no longer be comparable to her lifestyle during marriage. The termination of spousal support would transfer the compensatory aspect of the claim from the former husband to the former wife’s new husband.

In considering whether the entitlement to support continued, Justice Smith referenced the B.C. Court of Appeal, saying that “courts have not demanded a meticulous accounting of the detriment suffered by one party or the benefit received by the other.” Where the marriage is a long one, “the marital standard of living is a reasonable measure of appropriate compensation” although the other factors in the Divorce Act must also be considered.

A seemingly reasonable approach might have been to reduce the needs-based portion of the spousal support being paid by the former husband, but the B.C. Court of Appeal had already made it clear that a spouse’s entitlement to support was a “single and invisible one.”

Because the judge found that the claim for support was mainly compensatory, and but was unable to divide the different aspects of the existing support order, Justice Smith decided not to change the spousal support order in any way. As the couple had agreed to a specific method for adjusting support when the children no longer required child support, limited the former husband’s income available for spousal support, and agreed to specific provisions as to when spousal support could be reviewed, the court decided not to “rewrite the bargain” the parties made.

The existing order allowed a further chance to change spousal support in 2021, when the husband turned 65 without the need to prove a change in circumstances.

In MHW, the former husband should have saved his energy and money for the 2021 review.