Djekic v Zai, 2015 ONCA 25
The following analysis considers the issue of spousal support and the significance of the Spousal Support Advisory Guidelines.
The parties in this matter cohabited for almost eight years, but were never married. They separated in May 2012. The Wife in this matter made a claim for spousal support as she was unemployed and received CPP disability benefits and some income as a result of an award from Workers Safety Insurance Board, totalling $1,900 per month. Both parties were over 60 years of age. The trial judge in this matter awarded spousal support in the amount of $950 per month for a period of six years. The wife appealed this decision on the basis that it was an error to grant support on a time-limited basis. The Husband also appealed the decision with respect to the quantum of support.
After the Ontario Court of Appeal provided a brief background of the facts in this matter, it commenced its analysis by considering the quantum of support awarded by the trial judge – $950.00 per month. The Court found that there was no basis for interfering with the trial judge’s decision in that regard as the quantum of support was amply supported by the evidence.
The Court then continued its analysis by discussing the duration of the support obligation ordered by the trial judge. The Court of Appeal held that the trial judge erred in determining that the “spousal support award should be time limited to a period of six years” (paragraph 8). The Court referred to the Spousal Support Advisory Guidelines which suggest that where the “recipient’s age plus the duration of the relationship are greater than 65 – as is the case with [the Wife] – an indefinite award is appropriate” (paragraph 9). In Fisher v Fisher (2008), 88 OR (3d) 241 (ONCA), the Ontario Court of Appeal held that while a judge may depart from such Guidelines, he or she should provide reasons for doing so.
The Ontario Court of Appeal found that the trial judge did not include such reasons nor did the trial judge appear to have considered the Wife’s age at all in this context. The Court found that the Wife is disabled and on a small pension, while the Husband had access to an income in the approximate amount of $90,000 per annum.
Given the above, the Court varied the trial judge’s spousal support award to “provide for a monthly payment of $950 on an indeterminate basis, payable in accordance with the Guidelines” (paragraph 10).