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March 2010 — Law Office of Thomas J. MacLennan

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Month: March 2010

Home › Separation Agreements › 2010 › March

By Thomas J. MacLennan

Cassidy v. McNeil is an interesting case from Ontario’s Court of Appeal and deals with the Spousal Support Advisory Guidelines (“SSAG“). The case also deals with a trial judge’s duty to provide adequate written reasons for his or her decisions.

The trial judge ordered the husband to pay the wife spousal support of $1,200.00 per month for five years.

The lawyers who argued the appeal were not the same as trial counsel. Unfortunately, trial counsel failed to file and mark as exhibits the SSAG calculations used at trial.

The absence of a trial record was compounded by the brevity of the trial judge’s written reasons. The trial judge failed to deal with the issue of entitlement in his reasons, and simply noted that the wife had a need for support.

The Court of Appeal therefore used its own analysis of the SSAG and varied the trial judge’s decision to lower the spousal support to $950.00 per month, but made the order indefinite (given the ages of the parties and the length of the marriage).

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By Thomas J. MacLennan

Ontario’s Divisional Court upheld a temporary order requiring a husband to pay a wife spousal support of $110,000.00 per month. The spousal support award was reported in the news as the highest award in Canadian history.

The case is Elgner v. Elgner.

The focus of the appeal court is different from the motions court that made the award. In the appellate case, the focus was on whether there was an automatic right to an appeal in light of the provisions of the Divorce Act. The appellate court found there was no automatic right of appeal and that leave to appeal had to be granted.

The appellate court considered the test for granting leave to appeal an ‘interlocutory’ order under section 19 of the Courts of Justice Act: whether there was a conflicting decision in Ontario, or where there was good reason to doubt the correctness of the decision and the matter was of public importance.

The appellate court did not agree that there was a conflicting decision.

As for doubting the correctness of the decision, the appellate court held that temporary spousal support orders should be adjusted at trial rather than re-argued on appeal.

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By Thomas J. MacLennan 1

Slater v. Slater is a decision of Czutrin, J. of the Ontario Superior Court and highlights some of the issues that arise when a former spouse who is receiving spousal support re-marries.

In the Slater case, the husband and wife entered into a Separation Agreement after 20 years of marriage. The husband agreed to pay the wife “non-variable” spousal support of $10,000.00 per month. The parties agreed that spousal support could only be changed in the event of a “catastrophic” change in circumstances.

The wife remarried. The former husband then applied to terminate or reduce the spousal support.

In the normal circumstance, the extent to which the new husband contributed towards the wife’s expenses would impact on her need for support. The first husband named the second husband as a responding party in his application. He claimed that the second husband had a duty to contribute towards the existing support.

The former husband asked for an order that the new husband, at a minimum, share the obligation to support the wife. He asked that the new husband “indemnify” him for all or part of the spousal support because the new husband had an obligation to support the wife as an incident of marriage.

The court held that the parties’ Separation Agreement governed. The Separation Agreement required a “catastrophic change”. As the wife had been cohabiting when the Agreement was entered into and it was reasonably foreseeable that she might re-marry. Therefore, her re-marriage was not an event that triggered a variation.

The court did not address whether re-marriage in itself relieved the payor in whole or part of his obligation to pay spousal support. Czutrin J. expressed concern about making new spouses parties to applications to terminate spousal support. To do so would certainly dampen if not jeopardize intact relationships, and increase litigation.

We’ll see if the husband appeals.

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Thomas J. MacLennan brings a sense of calm and rationality to challenging legal issues. Contact The Law Office of Thomas J. MacLennan through our online form or call 416-591-1354 to arrange a consultation.





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