BACKGROUND
Wayne Biggar (the Applicant) commenced an application in 2018 seeking spousal support and unequal division of net family property from his former spouse Donna Stratford (the Respondent). The parties began cohabiting in 2008, got married in 2014, and separated in 2018.
The Applicant retired from being a long-haul truck driver in 2015 at the age of 65. The Applicant claims he was economically disadvantaged by the marriage because of the alleged persuasion by the Respondent for the Applicant to retire and to transfer the matrimonial home into both parties’ names. The Respondent worked remotely and contributed financially by paying the Applicant’s debts with her personal funds.
THE LAW
The Divorce Act section 15.2 governs spousal support orders for married spouses. Subsection 15.2(6) further sets out the objectives of a spousal support order including, recognizing economic advantages or disadvantages arising from the marriage or its breakdown, alleviating economic hardship post-separation, and promoting self-sufficiency of each spouse.
Entitlement to spousal support can be granted on the following grounds:
- Compensatory support is awarded based on evidence that the recipient has suffered an economic disadvantage as a result of the marriage breakdown (Moge v Moge, 1992 CanLII 25 (SCC); Fisher v Fisher, 2008 ONCA 11).
- Non-compensatory support can be granted where there is a drop in the standard of living of the claimant and economic hardship experienced post separation (Emmerson v. Emmerson, 2017 ONCA 917).
- Contractual basis where there is an agreement between the parties related to spousal support.
Section 15.2(4) of the Divorce Act outlines the factors a court will consider when making a spousal support order, including the length of cohabitation, the functions performed by each spouse during cohabitation, and any agreement or order relating to support of either spouse.
ANALYSIS
The court found that the Applicant was not entitled to spousal support on a compensatory basis because there was no evidence that the Respondent coerced the Applicant to retire. However, the court held that the Applicant was entitled to spousal support on a non-compensatory basis because of his lower post-separation standard of living and income disparity as compared to the Respondent.
Although the court found that the Applicant failed to pursue reasonable employment opportunities after retirement, the court recognized that the Applicant had a limited earning capacity as a result of age, education and health. Therefore, the court determined that the Applicant was capable of part-time work and imputed an income reflecting this from the date of separation onward.
The court ordered that a lump sum support award of $85,000 be payable by the Respondent to the Applicant. The court noted that a lump sum award in the amount is more suitable than periodic support payments given the length of these proceedings and the parties’ age.