Many people in BC think that remarriage or a new common law relationship will result in an immediate cancellation of any spousal support obligations. Our BC Spousal Support and Remarriage lawyers are at pains to explain to our BC spousal support and alimony clients that spousal support will not automatically cease because the receiving spouse enters into a new relationship. However, the length of the new relationship and level of economic integration can certainly impact the amount and continuation of spousal support in BC spousal support and remarriage cases. Contact our top BC Spousal Support and Remarriage lawyers to protect your rights.
In Morigeau v. Moorey, our most powerful court, the BC Court of Appeal decided against a paying spouse who sought to have his BC spousal support obligation cancelled as a result of his wife entering into a new relationship.
The respondent, at the time of the order, had commenced a new relationship. In 2013 the appellant (HUSBAND) applied to vary the order, claiming that there had been a material change in circumstances due to the respondent (WIFE) beginning to cohabit with her partner and the disparity in the parties’ income having decreased since the order.
Held: appeal dismissed. The respondent cohabiting with her partner did not constitute a material change in circumstances because, among other things, the cohabitation was reasonably foreseeable and, in any event, the cohabitation was not relevant to the entitlement to support because the spousal support order was primarily compensatory in nature. The judge did not otherwise fail to consider the other additional factors since, having found that there was no material change, he was not required to consider s. 17(7) of the Divorce Act.
Why was The Husband Unsuccessful In Cancelling Spousal Support?
The court focused on the fact the new relationship was in existence at the time of the first order and on the lack of financial dependence in the new relationship coupled most importantly with the fact the ex-spouse wife had left a long marriage where she suffered prolonged economic disadvantage while the ex-husband obtained economic advantages.
[11] Mr. Moorey relied, in part, on s. 14.7 of the Spousal Support Advisory Guidelines, which the judge reproduced at para. 13 of his reasons:
The remarriage or re-partnering of the support recipient does have an effect on spousal support under the current law, but how much and when and why are less certain. There is little consensus in the decided cases. Remarriage does not mean automatic termination of spousal support, but support is often reduced or suspended or sometimes even terminated. Compensatory support is often treated differently from non-compensatory support. Much depends upon the standard of living in the recipient’s new household. The length of the first marriage seems to make a difference, consistent with concepts of merger over time. The age of the recipient spouse also influences outcomes.
In particular fact situations, usually at the extremes of these sorts of factors, we can predict outcomes. For example, after a short-to-medium first marriage, where the recipient spouse is younger and the support is non-compensatory and for transitional purposes, remarriage by the recipient is likely to result in termination of support. At the other extreme, where spousal support is being paid to an older spouse after a long traditional marriage, remarriage is unlikely to terminate spousal support, although the amount may be reduced.
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[12] The judge then reviewed the cases tendered by Mr. Moorey in support of his application to vary based on “re-partnering”: Range v. Range (1995), 14 R.F.L. (4th) 11 (B.C.S.C.); Kelly v. Kelly, 2007 BCSC 227; Rimmer v. Adshead, 2012 SKQB 500; Redpath v. Redpath, 2008 BCSC 68; C.L.M. v. R.A.M., 2008 BCSC 217; Rakose v. Rakose, 2008 BCSC 1165; Barton v. Ophus, 2009 BCSC 858; and Lee v. Lee, 2013 BCSC 1227.
[13] The judge then, correctly in my opinion, summarized the principles derived from the authorities as follows:
[26] In my view, some of the principles that can be derived from the relevant authorities on a s. 17 application to vary spousal support involving re-partnering are as follows:
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The threshold question in each case is whether there has been a material change in circumstances from the date of the previous order, i.e., a change which, if known at the time, would have resulted in a different order: Willick v. Willick;
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Because of the different tests involved, cases involving initial applications for spousal support under s. 15.2 of the Divorce Act are of limited value in deciding an application to vary under s. 17 of the Divorce Act: L.M.P. v. L.S., Fargey v. Fargey;
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Although the focus of the analysis is on the original order and the circumstances in which it is made, the court will not consider the correctness of the original order, nor will the original order be departed from lightly: Willick v. Willick;
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Remarriage or re-partnering is not, in and of itself, sufficient to trigger a material change in circumstances: G. (L.) v. B. (G.), Kelly v. Kelly;
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If the applicant knew that the former spouse was seeing a third party and cohabitation was foreseeable at the time of the original order, cohabitation may not trigger a material change in circumstance: G. (L.) v. B. (G.), J.W.J.M. v. T.E.R.;
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The circumstances of the re-partnering may have a bearing on the analysis: Rakose v. Rakose, Redpath v. Redpath.
[14] The judge applied the foregoing principles to the facts before him. Those facts included the parties’ 20-year marriage and Ms. Morigeau’s 12-year absence from the workforce, during which time she stayed at home to raise the children. The judge stated:
[28] In this case, the parties were not young at the time of the Order. Ms. Morigeau was 56. She was out of the workforce for much of the marriage. Although she returned to the workforce on a full-time basis one year before the separation, there is a considerable disparity in the parties’ respective incomes that, given Ms. Morigeau’s limited work experience, is unlikely to change significantly.
[15] The judge was alive to the fact that the Order referred to the availability of a s. 17 variation. He noted that the Order was silent as to a variation based on re-partnering. He also noted that the Order provided for an income-based adjustment of spousal support every three years.
[16] The judge concluded:
[30] Immediately preceding the Order, Ms. Morigeau attested about her new relationship that “[I do not] consider us residing together” but acknowledged spending “significant time together”. In these circumstances, Ms. Morigeau’s subsequent cohabitation with the person she had been seeing for nine months was, in my opinion, foreseeable at the time the Order was made. The changes in income are inconsequential. In the result, I find that there has not been a material change in circumstances.
[17] The judge then considered the parties’ alternative submissions in the event a material change of circumstances had been established. Ms. Morigeau had tendered cases relevant to the question of re-partnering in circumstances in which the primary basis for the initial spousal support order was compensatory.
[18] Again, the judge reviewed the relevant case authorities: Bracklow v. Bracklow, [1999] 1 S.C.R. 420 and L.M.P. v. L.S., 2011 SCC 64.
[19] Mr. Moorey contended that the Order was non-compensatory (i.e., needs-based) and that Ms. Morigeau’s new relationship went to the root of entitlement to spousal support. Ms. Morigeau argued that the Order was compensatory and her new relationship had little or no impact on her circumstances.
[20] The judge concluded the spousal support order included both compensatory and non-compensatory elements. He did not quantify the elements, likely because it is difficult to precisely quantify the extent to which a spousal support order is primarily compensatory or non-compensatory. Almost all such orders will reflect elements of both forms of support.
[21] The judge found that Ms. Morigeau had foregone economic advantage and opportunity during her 12-year absence from the workforce. By contrast, he found that Mr. Moorey had “a rather obvious economic advantage” of employment with the same employer for 37 years.
BC Spousal Support and Remarriage Laws Are Tricky
In the end result the appeal was dismissed. Remarriage or re-partnering is not an automatic cutoff factor. Over time compensatory support (based on trying to make a partner who gave up more than they got in their relationship) will run out and needs and means based support ( based on the income of the paying spouse and budget of the receiving spouse) will kick in which can most definitely be affected by a new and robust spousal relationship. The area of BC Spousal Support and Remarriage is a tricky one and you should consult with one of our experienced BC Spousal Support and Remarriage lawyers to make sure you get it right. Contact us 1-877-602-9900.
