Halima Rashid, estranged wife of Jermaine Jackson, filed a motion asking for $35,643 per month in spousal support. She claims Jackson’s income fluctuates between $50k and $500k per month, depending on which concerts he books and other business deals. Rashid earns $600 per month, and alleged she had to sell her cars to pay bills. She further argued that her primary job during the marriage was to support her husband.
Entitlement to Spousal Support in Ontario
Spousal support is not an automatic right associated with a breakdown of a relationship. In 1999, in Bracklow v. Bracklow, the Supreme Court listed the three grounds necessary to establish an entitlement to spousal support:
- To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
- To fulfill a contractual agreement, expressed or implied, that the parties were responsible for each other’s support; or,
- On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.
Therefore, a spouse seeking support must demonstrate either a compensatory basis for support, need, or a contractual obligation. Regarding the compensatory basis of support, the Supreme Court held that spouses are entitled to be compensated for contributions to the marriage, and for losses sustained as a consequence of the marriage: for example, as a result of staying out of the work force in order to raise children, or putting one’s career goals on hold in order to accommodate a spouse’s career. Rashid would most likely have a claim on need based and compensatory grounds.
Section 15.2(4)) of the Divorce Act states that the court in considering a spousal support award shall take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse in the relationship; and any order, agreement or arrangement relating to support of either spouse. 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 sharing 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 self-sufficiency of each spouse within a reasonable period of time. Most spousal support payors hope that the Divorce Act objective of self-sufficiency requires the recipient to find a job immediately, so that in a few years, the recipient can no longer depend on spousal support and the payor’s obligation will terminate. However, this is not the case. The Supreme Court of Canada has confirmed that no one of the four objectives of the Act are paramount.
Imputing Income to the Recipient Spouse
In order to promote self-sufficiency, a judge may impute income to Rashid if she is found to be intentionally under-employed or unemployed. The onus will be on Jackson to establish whether income should imputed and if so, what amount should be imputed. Once a prima facie case for imputing income has been established, the responsibility will shift to Rashid to justify the income position she is taking. The Ontario Court of Appeal has set out a three-part test for determining whether income should be imputed in situations of unemployment or intentional underemployment:
- Is the spouse intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
- If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
According to the Court of Appeal, a spouse is intentionally underemployed if he or she chooses to earn less than they are capable of earning. The test does not require that the under-employment be in bad faith. When considering Rashid’s capacity to earn income, the court will consider among other things, the influence of her age, education, health, work history, and availability of work within the spouse’s capabilities on their capacity to earn income. If she is found to be intentionally and unreasonably under-employed or unemployed, the Court has discretion to impute an “amount founded on a rational basis” as income, taking into considering her age, education, skills, health, the number of hours that the spouse could work, as well as the hourly rate the spouse could reasonably earn.
Even if income is imputed to Rashid, it is likely that she will be entitled to spousal support given the wide discrepancy in her and Jackson’s income.