Can I Appeal a Spousal Support Order in Ontario?

Have you just been ordered to pay significant spousal support over an extended period of time? If so, you may be asking whether you can appeal this Order. Earlier this summer, the Ontario Court of Appeal reviewed the law in this area in making a decision. This decision demonstrated how and appeal of a spousal support order in Ontario is difficult.

What is Compensatory and Non-Compensatory Spousal Support?

In this case, the husband and wife were married in the United States where they lived for several years. The couple then moved to Ontario to allow the husband to take a position as a professor at a university. Prior to marriage, the wife worked full-time for eight years as a nurse’s aide. During the marriage, the wife worked part-time in modest positions whenever she could find them. She also stayed home to care for the children.

Compensatory spousal support is an Order to compensate a spouse who was placed in an economic disadvantage because of the marriage.  In this case, the wife sacrificed her own career as a nurse’s aid so that she could care for the family while the husband furthered his career. Put another way, the husband was only able to further his career because of the sacrifice of the wife. As such, the husband was ordered to compensate the wife through spousal support.

The law on non-compensatory spousal support is a little confusing at present. Typically this type of spousal support addresses the “needs and means” of the recipient spouse. In this case, non-compensatory spousal support was awarded because the wife had little means, while having significant needs in trying to maintain a similar standard of living post-marriage.

Amount and Duration of Spousal Support in Ontario

The amount of spousal support to be paid and the length of time it is to be paid is typically a matter that is contentious at trial. There is no strict rules on spousal support and it can be quite discretionary for the Judge. In this case, the marriage lasted five years and the husband was earning $146,000 per year.

The husband had argued that because of his significant debt, the payment of spousal support would cause undue hardship. The evidence demonstrated the husband had $347,000 in student-loan debt. The Judge found that this debt was solely for the benefit of the husband and therefore the wife need not suffer because of it.

In the end, the Judge ordered the husband to pay the wife $1,968 per month in spousal support for five years. This represented the low end of the spousal support advisory guidelines.

Appeal of a Spousal Support Order in Ontario

The husband appealed this Order to the Ontario Court of Appeal. The law on appeals of spousal support orders was reviewed. The leading case on the issue was a decision from the Supreme Court of Canada in Hickey v Hickey.

The Supreme Court found that Appeal Courts are not to interfere with a spousal support Order unless:

• There is a demonstrated error in principle;
• There is a significant misapprehension of the evidence; or
• The award is clearly wrong.

In other words, appealing a spousal support order is extremely difficult. The only way to successfully appeal is if the Judge made an egregious error, which would be obvious when reviewing the decision. The Court of Appeal was not persuaded in this case and the spousal support order was not changed.

What Can I Do if I Don’t Appeal a Spousal Support Order?

If you don’t appeal the spousal support Order, you will be paying it for a period of time. Typically, you may only get the Order reviewed if there has been a material change in circumstance. This means that there has been a significant change in the evidence the Judge considered. This would include such items as a significant medical issue which reduces income, retirement at a reasonable age, involuntary lay-off, or some other significant employment change.

If your ex-spouse is seeking a significant amount of spousal support, seek legal assistance. In this case, the husband was self-represented and is now paying approximately $120,000 in spousal support. A small investment in some legal advice may prove to save you money over the longer term.

Contact Hearty Law for a consultation on spousal support, child support, custody, access, divorce, property division or any other family law issue.

Hearty Law serves Toronto, Ottawa and surrounding communities. Email toronto@heartylaw.ca or ottawa@heartylaw.ca for more information.