Definite Indefinite Spousal Support: Termination of Long Term Spousal Support Pursuant to the Divorce Act
Section 15.2 of the Divorce Act sets out the law in relation to spousal support and subsection (6) outlines the objectives of a spousal support order, namely:
- Recognize the economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The trend has been that with marriages of a longer duration (i.e. 10 years or more) when one parent has stayed home to care for children while the other advanced his or her career and supported the family financially, spousal support orders are for a longer period of time and possibly indefinite.
Indefinite spousal support orders are court orders made with no fixed termination date or review clause and which would require a material change in circumstances to vary or terminate support. While this can be daunting for a support payor, the recent decision of Justice Hood in Choquette v. Choquette 2018 ONSC 1435 provides some insight into the court’s expectations with respect to spousal support recipients and the obligation they have to achieve self-sufficiency within a reasonable period of time which could result .
Twenty-two years earlier, an indefinite spousal support order was made in favour of Yvonne Choquette, a stay-at-home mother. Although Kenneth Choquette attempted to appeal that order, his attempts were unsuccessful. Consequently, he spent the next 22 years paying spousal support and raising the parties’ 2 children, without any child support from Yvonne. In 2015, Yvonne, through counsel, attempted to vary spousal support by seeking an increase as a result of a change in Kenneth’s circumstances, i.e. retirement. Typically, upon retirement there is a decrease in a payor’s income but in this case, at the time of retirement, Kenneth had accumulated a net worth of $14 million.
Justice Hood considered all evidence and determined whether Kenneth had satisfied his support obligation and whether Yvonne had made efforts to achieve self-sufficiency. It was determined that Yvonne, despite having the exact same education and CMA designations as Kenneth, as well as the same net worth following the equalization of their respective net family properties at the time of separation, made no efforts over the course of 22 years to become self-sufficient. As a result, Justice Hood decided that the best way to promote self-sufficiency would be to terminate spousal support.
This decision is important for many reasons, including but not limited to, the notion that once spousal support orders are made, the recipient cannot simply rely on those orders to financially survive. Rather, and where possible (i.e. where there are no major illnesses or disabilities that make self-sufficiency difficult) recipients should be actively seeking and attaining employment or furthering their education to be competitive and appealing candidates in the workforce as courts will consider these efforts when deciding whether or not to vary or terminate spousal support.