BACKGROUND
The Applicant and Respondent were married for 21 years and separated in July 2019. At the time of separation, the Respondent was 54 years old, and the Applicant was 47 years old. Both parties were employed throughout the marriage. The trial judge determined that the Applicant’s annual income was $154,008 and the Respondent’s annual income was $210,794.
Although the Applicant had relocated to Ottawa to support a career opportunity for the Respondent, the trial judge found that her own career had not been compromised. Instead, her career had progressed steadily upward as a result of her positive career choices. The trial judge also rejected the Applicant’s argument that her guardianship responsibilities for her niece had compromised her career.
Following a six-day trial addressing property and support issues, the trial judge concluded that the Applicant did not have a compensatory entitlement to spousal support but had “some entitlement” to support on a non-compensatory basis. The trial judge ordered the Respondent to pay the Applicant a net lump sum of $55,000 in spousal support. This amount was offset against an equalization payment of $88,183.29 owing from the Applicant to the Respondent. The Applicant had sought $150,000 in lump sum support, while the Respondent’s position was that no spousal support should be payable or, alternatively, that the lump sum should be $35,000.
The Applicant appealed the spousal support and costs orders. Neither party appealed the trial judge’s property determinations.
ANALYSIS AND THE LAW
Duration of Spousal Support
The Applicant argued that the trial judge erred by failing to determine the duration of spousal support, contrary to the Family Law Act and the Spousal Support Advisory Guidelines (“SSAGs”).
The Court of Appeal rejected this argument. The trial judge recognized that the “Rule of 65” applied to the parties. Under the SSAGs, where the Rule of 65 applies, periodic spousal support would generally be indefinite and therefore subject to variation rather than having a fixed duration. The trial judge nevertheless had discretion to determine an appropriate lump sum based on the circumstances of the case.
Based on the incomes attributed to the parties and the trial judge’s characterization of the support as falling between the low and mid-range under the SSAGs, the Court of Appeal inferred that the approximate notional duration underlying the lump sum award was six years.
Lump Sum Spousal Support
The Applicant argued that the trial judge failed to provide sufficient reasons for awarding spousal support as a lump sum rather than through periodic payments.
The Court of Appeal noted that failing to consider the advantages and disadvantages of lump sum support can constitute an error in principle. However, in this case, both parties had requested that any spousal support be paid as a lump sum. The Court distinguished cases such as Mwanri v. Mwanri, 2015 ONCA 843, and Davis v. Crawford, 2011 ONCA 294, where lump sum support had been ordered without being sought by both parties. Since both parties requested lump sum support, the Trial Judge did not err in awarding support in this form.
Spousal Support Advisory Guidelines
The Applicant also argued that the $55,000 award fell outside the range contemplated by the SSAGs.
The Court of Appeal confirmed that the SSAGs are advisory only and do not establish a mandatory formula that courts must follow in every case. The trial judge had made extensive findings of fact and provided detailed reasons for concluding that the Applicant had no compensatory entitlement and only “some” entitlement to non-compensatory support. Those findings directly informed the amount of the lump sum award.
The Court concluded that the trial judge had properly exercised her discretion and made no reviewable error in either the form or quantum of spousal support.
CONCLUSION
The Ontario Court of Appeal dismissed the Applicant’s appeal and upheld the trial judge’s decision to award the Applicant, Cheryl Holden, $55,000 in net lump sum spousal support. The Court confirmed that where the Rule of 65 applies, periodic support may ordinarily be indefinite, but a court retains discretion to determine an appropriate lump sum based on the circumstances of the case.
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