Duration and Quantum of Spousal Support – Reisman v. Reisman

The parties in this case were married for 20 years before they separated. Under an interim domestic contract, the husband agreed to pay the wife monthly spousal support and an advance equalization payment pending trial. The trial judge later awarded the wife an equalization payment of less than half of the equalization payment received from the husband and ordered that the overpayment be treated as lump sum spousal support. That amount was equivalent to $1,500 per month for 10 years. The trial judge also ordered monthly spousal support of $4,500 for 10 years. The Spousal Support Advisory Guidelines (SSAGs) yielded a monthly support payment of $4,050 at the low end and $5,400 at the high end. The trial judge’s support order was thus at the lower end of the SSAGs.

The Appeal

The wife challenged both the amount and duration of the trial judge’s support order. She argued that the trial judge erred by ordering an amount at the lower end of the range rather than the higher end of the range. In support of her argument, she pointed to the following passage from the SSAGs: “Long marriages will generate generous spousal support awards on an indefinite basis that will provide the spouse with something approaching equivalent standards of living after marriage breakdown”.

Quantum of Support

The appeal judge would not interfere with the amount of spousal support ordered. Even though an award at the higher end would have been appropriate, the amount ordered by the trial judge had to be considered with the lump sum support order and equalization amount that the husband overpaid. The overpayment was equivalent to monthly payments of $1,500 for 10 years. Thus, at least for 10 years, the wife’s monthly spousal support was $6,000, which is above the high end of the range established by the SSAGs. Accordingly, there was no basis to adjust the amount of support ordered at trial.

Duration of Support

The duration of support raised a more difficult issue. The trial judge emphasized that the wife had not done enough to become self-sufficient. “The Applicant is young, in good health and is certainly able to take steps to move into becoming self-sufficient or, if she chooses not to do so, she must adjust her lifestyle accordingly.” The trial judge emphasized that 10 years was an appropriate time period to recognize economic disadvantage suffered by the wife and promoted economic self-sufficiency of the wife within a reasonable period of time, which is a primary purpose of any spousal support order.

However, five undeniable facts stand out in this case. First, this was a long marriage: it lasted 20 years. Second, during the marriage the wife was the one mostly responsible for maintaining the household and raising the children. Third, the wife had not had a full-time job outside the home since the children were born. Fourth, the parties lived well during their marriage: they “never had to worry about income”. Fifth, when the time-limited support order by the trial judge ends, the wife will be 56 years old. In light of these facts, the appeal judge stated that it was “unrealistic” to impose a time limit on spousal support.

The SSAGs support this view. They state that for long marriages (defined as marriages of 20 years or more) spousal support awards should be “indefinite”. By “indefinite” support, the SSAGs do not mean permanent support or even support that will continue indefinitely at the level set by the formula, but instead “support that is subject to the normal process of variation and review.” As well, amount and duration are interrelated parts of the formula; they are a package deal. Using one part of the formula without the other undermines its integrity and coherence.

Thus, instead of imposing a 10 year limit on spousal support, the appeal judge ordered that support be indefinite, subject to variation or termination on a material change in circumstances.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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