Apr 21, 2020

Spousal Support During the Pandemic: Rights, Obligations & Remedies

Bracklow v. Bracklow, [1999] 1 SCR 420

As support payors suffer a loss of or reduction in their incomes what do we do about existing spousal obligations? As we have examined in recent posts the pandemic has resulted dire and some cases fatal consequences for many families and separated spouses. The court is dealing with urgent and emergency matters regarding child custody and access, but there remains a significant degree of uncertainly for families and family law lawyers.

It is just a matter of time before the economic effects of the pandemic regarding spousal support obligations will transition from issues that can be dealt retroactively at a later date by the Court when the justice system returns to normal to real cases of urgency bordering emergency requiring the Court to take action to address the economic hardship that is almost certain to ensue in the near future. With the current economic uncertainty – even with the Government’s efforts to bridge the gap – it is not a question of if, but a question of when changes in income will be considered urgent with respect to spousal support obligations.

Unlike child support obligations that typically adjust each year in accordance with the child support guidelines and the payor’s income, often existing orders and agreements do not provide for an automatic adjustment to spousal support. A starting point is consider the basis of the spousal support: Is it voluntary? Court ordered? Part of a domestic contract or Separation Agreement?

It also important to consider the specific terms of the spousal support agreement: is the support time limited? Indefinite? Subject to review or variation? Is the support compensatory given the roles played and the nature of the relationship? Does the agreement or court order deal with the concept of a material change and list specific examples?

The concept of “material change in circumstance” has a specific purpose and meaning with respect to spousal support obligations. A review of some previous cases illustrates how Courts have approached material changes:

  • Willick v. Willick [1994] 3 SCR 670
    • “material”, meaning a change that “if known at the time, would likely have resulted in different terms”
  • Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA)
    • A material change in circumstance must have some degree of continuity, and not merely be a temporary set of circumstances
  • Mogue v. Mogue [1992] 3 SCR 813
    • The facts of this case held that the child was no longer a child of the marriage; the wife’s incomes had increased since the original order in 1987; the husband then brought a motion seeking to reduce spousal support
    • In its decision, the Supreme Court dismissed the request to terminate spousal support as there would still be a large disparity between household incomes
  • Bracklow v. Bracklow [1999] 1 SCR 420
    • Bracklow elaborated on the compensatory claim for spousal support that Mogue considered by expanding and clarifying the entitlement to spousal support to:
      • Compensatory (i.e. one spouse does not work in order to assume primary care of the children at home);
      • Pure needs (i.e. illness or disability that prevents a spouse from working); and
      • Contractual

Some will argue that variations to spousal support should be considered given the economic impact of COVID-19. Each case will likely be fact driven and may generate different results.

It appears that the current trends and recent Court decisions regarding support and COVID-19, is that Applications or motions seeking to change support obligations are not being considered urgent. The Court has indicated such variations may be made retroactively at a later date.

Examples of a handful of recent decisions with respect support (non just spousal) issues and COVID-19, include:

Unfortunately, this trend could be the result of the Court’s current inability to conference and deal with non-urgent matters. If the economy worsens, and non-essential businesses remain closed for an extended period, at the time of this article possibly a few or even several months, there will be an increasing demand for the Court to address the escalating crisis and the quagmire spousal support payors are facing. We should also be mindful of support recipients who are also experiencing the financial challenges resulting from the pandemic. As this pandemic continues there will be no winners or losers as support payors and support recipients will both be unhappy.

[This post by Russell Alexander first appeared on FamilyLLB.com on April 16, 2020]