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A recent Ontario case examined whether a divorced wife, who stayed home to care for her children into their 20s, could make a compensatory claim.

The Facts

The husband in this case sought the termination of a 2003 court decision that ordered him to pay child and spousal support to his ex-wife. They shared two children together. In the original order, the court stated that it would allow for a review of spousal support by either party without proving a material change in circumstances after four years.

In the 2003 decision, the court stated that the wife was “a capable person and could succeed at most forms of employment she seeks if she were to set her mind to it.” However, the judge did not order spousal support to be time-limited as there was “no guarantee that the [wife] can achieve full self-sufficiency within a limited period of time.”

However, since the original order, the wife had not obtained full-time employment. She had worked part time on occasion, but insisted that her time and effort was largely taken up by caring for her children. She suggested that she had to care for the children after the trial up until they turned age 23 because of the husband’s failure to assist her with their upbringing. She said that because of her child care responsibilities, which had only recently ended, she had been unable to return the workforce. She stated that she was at a disadvantage as a result, for which she should be compensated in spousal support.

Issues

While the case turned on several issues, the court began by noting that, in the 2003 trial, “spousal support was the most contentious issue between the parties. It continues to be so.”

In 2003, the husband was ordered to pay $1,300 per month for two years, after which spousal support would be reduced to $500 per month; he had continued to pay this amount.

The husband argued that he should no longer be made to pay spousal support. He stated that there was no reason why the wife should not be self-sufficient at this point in time, and pointed out that he had paid spousal support for longer than he had been married to the wife. He said that the children, who were now in their 20s, were no longer dependent on their parents, and stated that the wife had made no reasonable effort to become self-sufficient since the 2003 order. He argued that it was time that spousal support should come to an end.

The wife requested a retroactive and prospective increase in spousal support. She argued that her role within the marriage, as well as her duties as the custodial parent of the two children robbed her of career opportunities, and she had been unable to become self-sufficient because she had to care for her two children without any assistance from the husband. Shesaid that she has looked for work but that her resumé had lengthy employment gaps which impaired her ability to obtain employment.

The Decision

The court began by noting that, at the current time, the wife’s income potential and the job opportunities available to her were limited in nature. However, the court refused to relate this to the wife’s role within the marriage or to disadvantages relating to the marriage or her child care roles within the marriage. The court noted that the couple had separated in 2000 and stated that:

“By 2003, when the spousal support award was made of $1,300 per month, the children were old enough to allow [the wife] to go out into the work force. She was not over 50 years of age at that point, but, as pointed out by [the 2003 judge], a perfectly capable 40-year-old woman. She continues to be capable; Dr. Gorman testified that there is no impediment to [the wife] working full time, and she is managing university well, achieving an “A” average. [The 2003 judge] allowed for support to allow [the wife] to become self-sufficient and I have no evidence of any continuing disadvantage resulting from the marriage which would prevent her from doing so; any disadvantages to her may very well result from decisions made by [the wife] herself since the trial.”

The court noted that, although the wife had presented a large number of jobs that she appeared to have applied to, including emails and responses from employers, she did not provide specific evidence as to why she did not get those jobs other than to say that she was “blacklisted” and could not obtain a job.

The court then stated:

“I accept that [the wife] has applied for full time work after separation, but other than saying that she was blacklisted (and I am uncertain what she meant by that and she did not state how she was blacklisted or who had blacklisted her), she did not explain why she could not obtain employment other than her age and time outside of the workforce. And much of what she relied upon in making a post separation compensatory claim was the fact that she was unable to work because she was caring for the children without any assistance from [the father].”

As a result, the court found that the wife was not entitled to her compensatory claim arising from her child care responsibilities beginning in 2003. The court also stated:

“It is unreasonable for [the wife] to insist that she needed to care for the children full time, or that her care for teenaged children prevented her from exploring career opportunities or in obtaining full time employment of some sort. I do not find that, 17 years after the parties separated, that her inability to find work is related to her child caring role within the marriage which was, after all, of medium length only.”

As a result, the court denied the wife’s compensatory claim. It temporarily increased her spousal support, based on her circumstances, with progressive decreases. Finally, the court ordered that spousal support terminate entirely in 2022.

Get Advice

Separation and divorce are challenging for everyone involved. When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.