“The trial judge provided no analysis as to whether the award achieved the objectives of spousal support. The objectives for needs-based spousal support (as opposed to compensatory-based) are set out in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 46:
Following Moge’s broad view of causation in compensatory support and the concomitant acceptance of the availability of non-compensatory support, courts have shown increasing willingness to order support for ill and disabled spouses. Sometimes they have done this as a “transition” to self-sufficiency. But more often, they have frankly stated that the obligation flows from the marriage relationship itself. Collecting cases, Rogerson explains in “Spousal Support After Moge”:
The [more dominant] approach, … particularly in cases of earning capacity permanently limited by age, illness or disability, and the one generally supported by the developing Court of Appeal jurisprudence, has been to award continuing support without regard to the source of the post-divorce need. On this approach, which I earlier referred to as the “basic social obligation” approach, causal connection arguments have been rejected not only in determining entitlement to support, but also in assessing the extent of the obligation. The message coming from the cases adopting this approach appears to be that one takes one’s spouse as one finds him or her, subject to all his or her, weaknesses and limitations with respect to income-earning capacity; and a spouse with higher earning capacity has a basic obligation to make continuing provision for a spouse who is unable to become self-sufficient at the end of the marriage. One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse’s financial circumstances. [Emphasis in original; citations omitted.]
The evidence here was that the appellant’s disability would continue. The trial judge specifically accepted at para. 49 that, “following her diagnosis of Spontaneous Intracranial Hypotension, [the appellant] has been unable to work”. Yet the trial judge ordered spousal support at only the mid-range of the amounts suggested by the SSAG formula, and at the lowest end of duration from the date of separation. There was no explanation as to why the support terminated when the need clearly continued.
As stated by this court in Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337, at para. 49, “[t]he duration of support is also an issue that ought to be contemplated under the SSAG”. For support to terminate there must be a realistic prospect of the spouse being able to become self sufficient: Reisman v. Reisman, 2014 ONCA 109, 118 O.R. (3d) 721, at para. 28. This court has upheld an indefinite support order in the case of ongoing need due to disability (Gray) and has overturned a time limit for support for a disabled spouse (Djekic v. Zai, 2015 ONCA 25, 54 R.F.L. (7th) 1, at para. 9).
Here the appellant remains disabled and unable to support herself. She lives on government disability payments. There is no evidence that her situation had changed or will change in the future.
One of the purposes of a spousal support order is to relieve financial hardship; another is for a former spouse to fulfil a basic social obligation to provide support where they are able to do so and the recipient spouse is not. Nothing in the trial judge’s reasons explains how the termination of support after only two-and-a-half years achieves these or other objectives of spousal support.”