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  • Writer's pictureJared Davies, Lawyer

Two primary ways spousal support may be ordered indefinitely

There are two main ways that spousal support may be awarded indefinitely: first, when the relationship is 20 years or longer and the second is referred to as the “the rule of 65”. For clarity, the Spousal Support Advisory Guidelines iterate:

Indefinite support does not necessarily mean permanent support. It only means that no time limit can be set at the time of the order or agreement. And it certainly does not mean that support will continue indefinitely at the level set by the formula, as such orders are open to variation and review as circumstances change over time.

Reisman v Reisman, 2014 ONCA 109 illustrates an example of the first scenario, where the length of the relationship was 20 years and the Court of Appeal determined support ought to have been ordered indefinitely:

L and H were married for 20 years.

She contends that after a largely traditional marriage of 20 years during which she never held a full-time job outside the home, she is entitled to a higher amount of support payable indefinitely.

Here, five undeniable facts stand out. First, this was a long marriage: it lasted 20 years. Second, during the marriage L was the one mostly responsible for maintaining the household and raising the children. Third, L has not had a full-time job outside the home since the children were born. Fourth, H and L lived well during their marriage: they "never had to worry about income". Fifth, when the time-limited support order by the trial judge ends, L will be 56 years old. In the light of these five facts, it seems to me unrealistic to impose a time limit on spousal support.

Thus, I would follow the recommendation in the Guidelines. Instead of imposing a 10 year limit on spousal support for L, I would order that support be indefinite. In addition, I would make the order subject to variation or termination on a material change in circumstances.

As the case of Thom v Thom, 2013 ONSC 2209 adds, [i]n determining the length of the relationship for spousal support purposes, the Court should look to the start of cohabitation, even before marriage, to the date of separation. In other words, the period of time before marriage, when the parties were cohabiting, is relevant in determining whether the relationship was 20 years in length or whether the rule of 65 applies.

Djekic v Zai, 2015 ONCA 25 exemplifies the very straight forward rule of 65, which posits that if the age of the recipient and the duration of the relationship equate to 65 or over, indefinite support will likely be awarded. The Court of Appeal noted:

The Spousal Support Advisory Guidelines suggest that where the recipient's age plus the duration of the relationship are greater that 65 — as is the case with Ms. Djekic — an indefinite award is appropriate. In Fisher v. Fisher (2008), 88 O.R. (3d) 241 (Ont. C.A.), this Court noted that, while a judge may depart from the Guidelines, he or she should provide reasons for doing so. Here, the trial judge did not. In addition, he does not appear to have considered Ms. Djekic's age at all in this context, or the fact that she is disabled and on a small pension. Mr. Zai, on the other hand — while he says he is not a wealthy man — has, or through his business corporation has access to, an income in the neighbourhood of $90,000 per year according to the records filed. Although he may not maintain this earning capability for many years, the nature of an indeterminate award is that it is not necessarily permanent as it may be subject to variation, in light of appropriate changes in circumstances.

We would therefore vary the trial judge's spousal support award to provide for a monthly payment of $950 on an indeterminate basis, payable in accordance with the Guidelines.

The Guidelines do indicate, however…the “rule of 65” for indefinite (duration not specified) support is not applicable in short marriages under 5 years in length. In other words, the parties should have been together for at least 5 years for this rule to apply.

As iterated, indefinite support simply means that the court ought to review the support at a later date, and Spirito v Spirito, 2022 ONSC 1839 indicates when this may be appropriate:

Section 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.

The factors to be considered in a variation proceeding involving spousal support are set out at s. 17(7) of the Divorce Act:

a. Recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown.

b. Apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage.

c. Relieve any economic hardship of the former spouses arising from the breakdown of the marriage.

d. In so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

The leading case with respect to varying spousal support is L.M.P. v. L.S., [2011] 3. S.C.R. 775. The Supreme Court of Canada sets out the two-step process. First, the threshold in s. 17(4.1) of the Divorce Act regarding the change of circumstance must be met. The change must be a "material one, meaning a change that, if known at the time, would likely have resulted in different terms." Second, any variation to be made must consider the four objectives of spousal support enumerated in s. 17(7) of the Divorce Act: see paras. 29, 32 and 50.

Given that these cases are based primarily off the Spousal Support Guidelines, it is important to clarify that the Guidelines are not binding. However, if a judge is going to depart from the guidelines, the law states that they must give reasons why. Fisher v Fisher, 2008 ONCA 11 states:

In the seminal case of Yemchuk v. Yemchuk (2005), 16 R.F.L. (6th) 430 (B.C. C.A.) at para. 64, Prowse J.A. aptly characterized the Guidelines as a "useful tool."22 She recognized that, unlike the CSGs, the Guidelines are neither legislated nor binding; they are only advisory.

Wardlaw v Wardlaw, 2019 ONSC 6906 demonstrates a case where the guidelines would have resulted in an indefinite support award, but the trial judge felt it prudent not to award indefinite support because the parties needed a “clean break”:

I did not put an end date on spousal support in my trial decision. Given the fact that this was a seventeen-year marriage, the SSAG calculations produce indefinite support, and I accept that conclusion. The problem is that an indefinite period of support produces an indefinite opportunity for Jana to continue litigating this case. If support is ongoing, she can bring motions to vary the support or attempt to re-litigate other claims or issues, including procedural issues.

The significance of this concern needs to be assessed in light of Jana's testimony at trial that "I don't want to work right now because I want to fight you people" (see paragraph 157 of my trial decision). If indefinite support is paid, it is reasonable to assume that Jana will continue to litigate issues relating to this case rather than getting on with her life. This is a factor that strongly favours a lump-sum award of spousal support.

In other words, this is the type of case where a "clean break" between the parties is both necessary and desirable.

Likewise, in Pitt v Pitt 2019 ONSC 949 the court reviewed a decision where spousal support was awarded indefinitely, even though the long-term relationship rule or the rule of 65 did not apply:

The trial judge determined that an indefinite award of spousal support rather than a time-limited award was appropriate given the uncertainty of Brenda's medical conditions, her contributions to the household and in particular the care of the children during the marriage and significant disadvantage suffered by Brenda on the breakdown of the marriage. In effect, the trial judge took the first approach by awarding spousal support at the high-end of the range for an indefinite period.

Obvious takeaways? There are two main ways that spousal support can be awarded indefinitely. This can occur either where the relationship of the parties is 20 years and over or where the length of the relationship added to the recipient’s age is 65 or over (provided the parties have been together for at least 5 years). The court has made clear that the guidelines are merely that, guidelines, although it is rare that a judge will depart from them.


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