Under the Spousal Support Advisory Guidelines, reaching the 20th year of marriage can create an indefinite support obligation upon parties ordered to pay spousal support. If a marriage is 20 years or longer, the Guidelines indicate that spousal support should not be subject to a specified duration – in other words, indefinite. The same result occurs under the Guidelines if the marriage has been five years or longer and the years of marriage plus the age of the recipient add up to 65 or more. This is the so-called Rule of 65.
Under the Guidelines, these numbers (the Rule of 65, and the 20th year of marriage) look like bright lines separating couples who fall just below the threshold and those just above. However, as indicated in the article Calculating Spousal Support, the Guidelines are just advisory guidelines, not law, and courts have discretion to follow or depart from them, depending on the facts of each particular case.
The Fisher v. Fisher Decision
A 2008 Ontario Court of Appeal decision, Fisher v Fisher dealt with support in the case of a marriage lasting 19 years. The Court of Appeal upheld the decision of the trial judge, who used the Guidelines to determine spousal support but concluded that any economic disadvantage suffered by Mrs. Fisher as a result of the marriage was not sufficient to warrant indefinite support. Mrs. Fisher was awarded 7 years of spousal support for her 19 year marriage.
Despite the long marriage, Mrs. Fisher did not meet either the 20-year threshold or the Rule of 65. The Court of Appeal made the following observations: “Indefinite support is appropriate after a long-term marriage because the dependent spouse is often of an age that makes it difficult to achieve economic self-sufficiency…Even though this marriage was lengthy; the trial judge decided that an indefinite order was not appropriate. In making this determination, the trial judge considered the appellant’s [Mrs. Fisher’s] employment position and relative youth.” There were no children of the marriage, and Mrs. Fisher was only 41, had worked periodically throughout the marriage, and was employable.
The decision is viewed as placing a greater amount of emphasis on need than on the duration of compensation for Mrs. Fisher’s efforts in supporting her husband on his career trajectory. In situations like Mrs. Fisher’s, where the marriage was of a long duration but the parties are relatively young, the court may not order indefinite support. In cases where the parties are older, indefinite support is more likely. However, keep in mind that “indefinite” does not mean “forever.” It simply means that no initial time limit is imposed. The order can always be varied if the circumstances of the parties change. For example, if the payor spouse is near retirement, his or her income will likely drop at that point, and variation will be required.
If you’ve been married for 20 years or more or may fit the Rule of 65, it is important to understand your rights and responsibilities as they relate to spousal support. Call (905) 581-7222 to learn how an Ontario family lawyer can assist you.