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  • Writer's pictureJared Davies, Lawyer

The implications of reconciliation on spousal support

Introduction:


Temporary reconciliation can have many family law legal implications. For instance, spouses need to be separated for at least one year to use separation as a ground of divorce. However, section 8(3) of the Divorce Act says that spouses can reconcile for at most ninety days for this one-year period to still stand. Separation and reconciliation can have implications for an agreement, or domestic contract, reached prior to the reconciliation (see Miaskowski v MacIntyre, 2020 ONCA 178). The courts can also adjourn legal proceedings where there appears from the evidence to be a possibility of reconciliation. What about spousal support?

Spousal support is partly calculated on the length of the relationship between the couple. So what happens when a couple temporarily separates before their final separation - how does this affect the total length of a relationship for support purposes?

The Case Law:


The case law suggests that the entire period of cohabitation is still likely to be considered for support purposes so long as the interim separation period is deducted. In Whalen-Byrne v. Byrne, 2017 ONCA 729, this is exactly what happened; there was a temporary period of reconciliation and the court found that the entire period of cohabitation should be considered minus the initial separation period:
[10] Ms. Whalen-Byrne submits that the trial judge erred by, in effect, restarting the period of cohabitation in March 1997. He should have instead taken into account the parties’ entire period of cohabitation from June 1993, and then deducted from it the five month period of their temporary separation.
[11] We agree with Ms. Whalen-Byrne’s submission. We need not decide whether the trial judge erred in law in failing to take into account the previous period of cohabitation. On the evidence before him, his failure to do so was unreasonable and justifies our intervention.
Family law commentary, The 2017-18 Year in Spousal Support: Appeals, Material Changes and More, interprets this Court of Appeal decision as mentioned above:
Whalen-Byrne v. Byrne, 2017 ONCA 729: Interrupted Cohabitation...One question pops up now and then about the SSAG, especially under the without child support formula: what is the duration of cohabitation when a couple separates, then reconciles and then separates again? That question was answered clearly in Whalen-Byrne: generally, the cumulative period of cohabitation should be used for SSAG purposes.

Conclusion:

Periods of reconciliation can have a major impact on many facets of divorce and/or related subjects such as spousal support. The period of cohabitation is directly related to the calculation of spousal support. So the question naturally becomes what happens if the parties temporarily separate - does the previous period of cohabitation get ignored in the support calculation? Whalen-Byrne suggests the entire cohabitation period is to be considered and the interim separation period is likely to be deducted from the overall cohabitation period of the parties.

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