BACKGROUND
This is a motion brought by the Respondent Husband for interim support. The parties began a relationship in 2016 when the Applicant Wife was completing medical school. They began living together in 2017, married in 2020, and had a one child in February 2022. In December of 2022, the parties moved from London to Toronto so that the wife could begin a medical fellowship, specializing in gynecologic oncology. The parties separated in October 2024 but continued residing separate and apart in the matrimonial home. The wife was scheduled to begin a permanent position in Hamilton in her specialty by January 2026. The wife’s income in 2025 was approximately $112,000, however, in 2026, her base salary increased to about $194,000. She will also be able to retain 100% of her OHIP billings which brought her total estimated remuneration to $320,000. The husband has not worked consistently since 2020 when he worked part-time as a business development manager for food processing equipment. In 2019 the husband began a 2-year master’s degree, however, he took a parental leave after the parties’ son was born, extended that leave when the parties moved to Toronto, and took a leave of absence following the separation. The husband had temporary employment in 2021 and 2022. He currently does not work, nor did he earn an income in 2024 or 2025.
ISSUES
- Is the husband entitled to interim spousal support?
- If yes, what is the appropriate quantum of spousal support payable by the wife to the husband on a temporary basis?
ANALYSIS
Is the husband entitled to interim spousal support?
The court reviewed the three grounds in which entitlement to spousal support can be established:
- Compensatory: Claims based on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage or the recipient’s conferral of an economic benefit on the payor for which the recipient was not adequately compensated.
- Non-compensatory: Claims based on need (which has been interpreted to mean a significant decline in the standard of living compared to that enjoyed during the marriage).
- Contractual: Claims arising from domestic contracts or other informal agreements.
With respect to the husband’s compensatory claim, the court dealt with conflicting evidence about the parties’ roles during the relationship. However, given that the demanding nature of the wife’s career and her unpredictable hours, the court was satisfied that the couple relied on the husband’s availability to meet childcare needs. The court also considered that because of her work schedule and the fact that the parties moved from London to Toronto to advance the wife’s career, the husband had difficulty finding stable employment during the shorter-term marriage. These factors were sufficient to ground a triable compensatory claim. With respect to the husband’s non-compensatory argument, the court found that the husband also had a triable non-compensatory claim because he was financially dependent on the wife throughout their cohabitation, and because the court found that he would experience hardship and a decline in his standard of living without spousal support in place.
What is the appropriate quantum of spousal support payable by the wife to the husband on a temporary basis?
With respect to the wife’s substantial post-separation increase in income, the husband argued that he should share in that increase because it is directly linked to his contributions and sacrifices during the marriage. The wife opposed this and considered the husband’s resistance toward seeking employment throughout the relationship to be more of a burden. The court outlined that determining whether a spouse is entitled to share in the other partner’s post-separation increase in income is a highly fact-driven exercise. When a finding of a compensatory basis for spousal support exists, the recipient may be entitled to the increase in the payor’s income. At this interim stage, the court was unable to conclude that there was a clear link between the wife’s increased income and the husband’s sacrifices. As such, the court decided not to base the amount of interim spousal support on the wife’s new, post-separation salary.
The court explained that interim spousal support is intended to behave similarly to a “holding order”, meaning that it maintains the lifestyle of the recipient as much as possible pending trial. The husband had no other income besides child support received from the wife. The husband was to move to Hamilton to facilitate a shared parenting plan as that is what the parties agreed was in the child’s best interests. He would require spousal support in order to make this relocation economically feasible. Therefore, the wife’s income was accepted at approximately $85,000 for spousal support purposes.
With respect to the wife’s argument that the husband should be imputed to a higher income, the court declined at the interim stage because there were too many unknowns. Further, it did not seem logical to expect the husband to make over $20,000 when his actual income never exceeded that amount.
CONCLUSION
The court decided to order the husband to be paid high range spousal support in the amount of $2,254. This was because of the husband’s very limited earning capacity and the cost of the relocation to Hamilton. Importantly, there was also a consideration that the child’s standard of living would be noticeably lower in the husband’s care than the wife’s care even with spousal support in place.
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