November 15, 2022 – Spousal Support: Condition, Means & Needs

“In making an order for spousal support, a trial judge must consider “the condition, means, needs and other circumstances of each spouse”, including (a) the length of time the spouses cohabited, (b) the functions performed by each spouse during cohabitation, and (c) any order, agreement or arrangement relating to support:  Divorce Act, s.15.2(4).  In applying this section of the Divorce Act, I am mindful of the following:

a)    The word “condition” has a flexible meaning that includes, among other things, social standing or position of a person in the community and also the person’s physical and mental condition: Harris v. Harris, 2005 CanLII 10889 (Ont. S.C.), at para. 23.  A recipient spouse’s health condition may be relevant if it prevents them from working or interferes with their ability to contribute to their own support.  In some circumstances the law may require that a healthy spouse continue to support a disabled spouse, absent contractual or compensatory entitlement: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 48; Gray, at para. 28.

b)   The word “means” is broader than income.  Determining a party’s means may include consideration of such things as a substantial equalization payment, the availability of non-monetary support by family members (e.g. who may provide rent-free housing accommodations), or property ownership that has unrealized potential to generate rental income.

c)    The recipient spouse’s need “should be assessed through the lens of viewing marriage as an economic partnership”: Gray, at para. 27. In determining need, the trial judge “ought to be guided in partby the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased”: Gray, at para. 27 (emphasis added); Marinangeli v. Marinangeli(2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at para. 74. As mentioned above, however, maintenance of the marital standard of living may not be feasible post-separation, particularly in cases where there are concurrent child support obligations.”

K.K. v. M.M., 2021 ONSC 7522 (CanLII) at 41