How Does Vancouver Spousal Support Work When There Is A Remarriage Or New Relationship?
As Vancouver spousal support lawyers we often deal with the Divorce Act spousal support provisions and the Spousal Support Advisory Guidelines. One interesting issue concerns parties who seek support or oppose a reduction of support when they are involved in a new relationship or are remarried. Some people wrongly believe once you are in a new relationship or remarry there is no further entitlement to or obligation to pay spousal support! The impact of the new relationship may be relevant to a needs based support claim but irrelevant to a compensatory based support claim. The impact of the new relationship will likely increase as the duration of spousal support payment increases.
The decision in H.v H. shows just how a new relationship is analyzed to see if it impacts at all the spousal support obligation of the original spouse. In the H case no spousal relationship was found and so it was irrelevant to the support obligation of the first spouse. Call us at 1 877 602 9900 toll free to see how a new relationship may impact the amount and length of time spousal support is paid. You need to understand exactly how the law works in this complex area. Make an appointment.
Spousal maintenance
[14] Ms. M.H.’s application for spousal support is pursuant to s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The ss. 15.2 (4) factors relevant to this case are (a) the length of time the spouses cohabited; and (b) the functions performed by each spouse during cohabitation. The relevant ss. 15.2 (6) objectives of a spousal support order include (a) [recognition of] any economic advantage or disadvantage to the spouses arising from the marriage or its breakdown; and (c) [relief from] any economic hardship of the spouses arising from the breakdown of the marriage.
[15] Mr. R.H. contends that his wife’s relationship with L. is a marriage-like same sex union which creates a legal obligation for her support enforceable against L., and reduces or eliminates any requirement that he pay spousal support.
[16] I note that Ms. M.H.’s entitlement to spousal support from Mr. R.H. arises not only as a result of her financial hardship, but also on the separate compensatory basis for spousal support indicated in Bracklow v. Bracklow, [1999] 1 S.C.R. 420. This basis for support is founded on the nature of her role during the marriage which placed her at a disadvantage in earning capability subsequent to the breakdown of the marriage. Any obligation of a subsequent partner to provide for Ms. M.H.’s support will have little relevance to her compensatory maintenance claim. Further, a needs based claim may have a substantial foundation even should there be such a subsequent relationship. In Wettlaufer v. Wettlaufer, 2007 BCSC 137, Master Baker made the following comment at para. 20, in respect of an analogous contention to that advanced by Mr. R.H. in this case:
[20] … In my view the simple result is that while cohabitation may (and typically does) have some financial implications for the applicant spouse, it does not create any presumption against support, nor does it create a specific onus on the claiming spouse or on his/her new partner to prove that the new partner has not, somehow, supplanted the other spouse’s economic responsibility.
[17] An enduring needs-based claim will have strong support in circumstances such as are evident here: a long term marriage, a disabling condition that first arose prior to separation, and the limited financial circumstances of the supposed partner to the subsequent relationship.[18] Before such considerations become relevant, however, there must be evidence of a subsequent relationship of such a character as to raise the issue.
[19] Mr. R.H. refers to s. 89 of the FRA which creates an obligation for one spouse to support the other. The definition of spouse set out at s. 1 of the FRA includes ss. 1(1)(b):
… [A] person who … lived with another person in a marriage-like relationship for a period of at least 2 years … and for the purpose of this Act, the marriage-like relationship may be between persons of the same gender.
[20] As is apparent, the recognition of a spousal obligation for support between partners of the same gender is dependent on the partners being parties to a marriage-like relationship. Further definition of what this constitutes is indicated in Gostlin v. Kergin, [1986] B.C.J. No. 365 (C.A.) at page 3:
… I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependant on the other, in accordance with a mutual arrangement.
[21] In this case, both Ms. M.H. and L. deny their relationship is marriage-like. Ms. M.H.’s evidence is that L. is her friend, roommate, and now as a result of her disability, her caretaker, whom she relies on to help with her personal care and management of their household. She denies any sexual relationship with L. They do not share a bank account nor own property together, nor do they file joint tax returns. In payment for L.’s services, Ms. M.H. pays for their rent, utilities, and food. Her evidence is that there is no long term commitment between them and that if L. can no longer function as her caregiver, Ms. M.H. will have to find someone else to provide care or enter a care facility.
The judge found the husband’s argument of a new spousal relationship unfounded and taking into account the wife’s disability awarded support near the higher end of the Spousal Support Advisory Guidelines scale of $2000 a month back to the date of filing of the wife’s application.
