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  • Writer's pictureJared Davies, Lawyer

Spousal support and re-partnering, pursuant to Politis v Politis, 2021 ONCA 541

Is spousal support still a thing when the recipient gets re-married? In short, a spouse’s re-partnering does not automatically disentitle the recipient to support, but it can impact the amount and duration.

The type of spousal support plays a huge role in the above scenario. If the recipient has a new partner, a needs-based support award has a greater chance of being reduced than a compensatory award. This is no surprise. If you are awarded spousal support as a form of compensation for a role assumed during marriage, then getting re-married does not change the rationale for support. If, on the other hand, you are awarded support because you cannot afford the same lifestyle without it, then your remarriage does potentially change things.

At trial, the wife was entitled to spousal support on a compensatory and non-compensatory basis. The wife’s compensatory entitlement was established through the fact that she was a full-time homemaker during marriage, who looked after the parties’ children. The wife’s non-compensatory, or needs-based, entitlement was established through the fact that she could not re-enter the workforce because of an illness, it was a long-term marriage (over 20 years), and she lacked formal education and work experience. These factors indicated that she would have a harder time becoming self-sufficient, thus warranting a support award.

After the recipient’s remarriage, the trial judge noted that she actually enjoyed a standard of living equal to or better than the payor’s standard of living. This is a huge factor when there are needs-based considerations.

The Spousal Support Advisory Guidelines (SSAGs) generate a quantum and duration for spousal support. Family judges typically use the formulae to get an idea of what the recipient spouse may be entitled to. It is important to note that these are guidelines that can be deviated from in the right circumstances. These formulae use the length of the marriage and the income difference of the parties to come to a set range of support. The trial judge found the range for quantum to be from $4,673 to $6,185 per month, payable by the husband to the wife. Yet, the trial judge awarded the recipient just $3,000 per month until 2026, with a reduced quantum in the final years. Was this an error?

On appeal, the main question was whether the trial judge deviated too much from the SSAGs in both quantum and duration. However, the Court of Appeal ruled this was an appropriate use of the SSAGs and the trial judge did not err. As iterated, the recipient had re-partnered, thus her needs theoretically lessened. The recipient’s new partner would be expected to lighten her load, so to speak.

The recipient also argued the rule of 65. The rule of 65 is a SSAG principle—if the length of the marriage and the age of the recipient, added together, is greater than 65, support should be indefinite. Indefinite does not mean forever. Rather, it simply means that the judge should not put a cut-off date on the support. It should be revisited at a later date to determine if and when the obligation ends. The problem, said the Appellant, is that the trial judge cut the support off in 2026. Appeal Ruling: a recipient’s re-partnering can also weigh against the rule of 65. In cases of re-partnering, it may be appropriate to set an end date for spousal support. The trial judge did not err.

Obvious takeaways? A judge has discretion in determining the quantum and duration of spousal support. If you are the recipient of spousal support and you re-partner, this may factor into your spousal support outcome.




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