The Spousal Support Advisory Guidelines are a very useful tool that provides suggested ranges of support based on variables that include children, length of relationship, and income. However, the Guidelines are surprisingly silent on a common feature of post-separation families: the re-partnering of the payor spouse. As the writers of the Guidelines decided to leave this circumstance to a case-by-case determination, we need to examine case law to determine how these circumstances are treated.
The courts have consistently rejected the notion that obligations to a second family form the basis for a reduction in spousal support. Judges are very hesitant to reduce spousal support where there is entitlement for spousal support from a first marriage, and the payor has made voluntary decisions with regards to familial and financial commitments following separation. The case law indicates that a court may reduce first-family support only if maintaining both families would amount to undue hardship (a high legal standard of financial duress), which suggests that courts are not inclined to reduce first-family support to ensure that the two family units are treated similarly. The first family has priority and support is rarely reduced to accommodate the needs of a second family.
Similarly, the circumstances of the recipient of spousal support may also be relevant as time passes post-separation. The weight that is to be given to the re-partnering of the payee post-separation is balanced against the need for spousal support, whether or not the objectives of spousal support have been met, and whether a new spouse will assume responsibilities for the payee’s ongoing need, if any.
It should be clear that once a spouse has entitlement to support, the obligation to pay is not one that is easy to absolve, which is most evident in cases where spouses move on post-separation and make new familial and financial decisions. For this reason, legal issues such as entitlement and undue hardship, which are themselves decided on a case-by-case basis, become important at a very early stage in any agreement on support.
The preceding paragraphs were for information only and not to be construed as legal advice. If you have any questions about spousal support or re-partnering post-separation, please contact our office to speak to one of the lawyers at CWH Law Corporation: Carol W. Hickman Q.C., Laurence Scott Q.C., Rupinder Shoker, Rizwana Choudhry or Emily Raven.