Family Law – Spousal Support – Interim
The petitioner made an application for interim spousal support after separating from the respondent after 26 years of marriage. Her income at the time of application was expected to be $25,000, derived from employment insurance that might end within months. The petitioner submitted that her total expenses were $60,700 for rent, insurance, utilities and food. Her debt repayment obligation was $6,700 annually and she claimed that her shortfall was $25,000. She acknowledged that because she was unemployed, she would not have to pay income tax, EI premiums or Canada Pension Plan contributions. The respondent had recently changed his position and was earning $78,000 per annum, approximately $25,000 less than what he had been paid in his previous employment. He submitted that his total expenses were $89,500, including $10,400 for mortgage payments on the family home, property taxes, insurances and utilities. He was also responsible for payment of family debt that cost him $11,500 in annual payments and estimated his shortfall at $12,500. Based upon each party’s current income, the Guidelines indicated spousal support should be in the range of $1,650 to $2,100. However, the respondent argued that due to his carrying the mortgage, related payments and much of the jointly-incurred family debt, he could not afford spousal support. The petitioner’s position was that an average of the past three years of the respondent’s income should be used for the interim calculation of support, resulting in him having $96,604 in annual income. With her income being under $25,000, the Guidelines indicated support in the range of $2,296 to $2,955. She argued that her entitlement to spousal support was based on a non-compensatory needs-based analysis that would place her in the middle of the range at $2,678. The issue was whether the petitioner had established entitlement to spousal support and if so, what was the appropriate amount?
HELD: The petitioner was awarded interim support in the amount of $1,600 per month in accordance with the Guidelines. The respondent’s payment of debt prevented any higher amount being awarded. The court found that the petitioner was entitled to non-compensatory support because of the length of the marriage that had left her economically disadvantaged and her much lower income. Any entitlement to compensatory support would be left for pre-trial or trial. It found that the petitioner’s income was $25,000 but it would reduce her expenses by $11,000 to take into account that her costs were lower due to unemployment. It accepted the respondent’s current income was $78,000 as there was no intentional underemployment. He should be given credit for some aspects of carrying the additional family debt and house expenses but it was also necessary to consider that he lived in the family home and benefitted from all of the related payments in that respect. Some of his discretionary expenses might have to be reduced.