A recent family law decision out of Ontario is gaining attention for the court’s determination that the parties were common-law spouses despite one party’s insistence that they were merely roommates. This determination was made when deciding on the issue of entitlement to spousal support. However, the case also raises another question, due to a tangential fact mentioned as part of the pair’s history together. Specifically, whether domestic violence can have an impact on the duration or obligation to pay spousal support.

Court Uses Documentary Evidence to Classify Parties as Common-Law Spouses

Before the discussion around domestic violence, let’s look at the primary issue in the case; the determination of whether the parties were, in fact, in a common-law relationship (or an adult interdependent relationship, as it is also referred to in Alberta). The parties, a man and a woman, met and began dating in 1989. They moved in together in 1997, renting properties until the appellant purchased a home in 2008, at which point they shared that home for the duration of their relationship. The man suffered from mental health issues and was unable to work consistently as a result. The woman supported him financially and gave him access to her bank accounts and credit cards.

The relationship ended when the man was charged with assaulting the woman. The man brought a claim for spousal support, which the woman objected to. She had claimed that they had not been in a common-law relationship, instead classifying their arrangement as ‘roommates’, but the court disagreed. Turning to documentary evidence, the court found that the woman had referred to the man as her common-law spouse in various documents including her will, pension plan, insurance plans, and power of attorney. The woman was ordered to pay both retroactive and ongoing support, although in an amount below the Spousal Support Guidelines because the man was found to have been intentionally underemployed. The woman appealed the decision, but the appeals court found no reviewable error.

Domestic Violence or Abuse & Spousal Support

Aside from the issue of classifying the nature of the relationship, the case provides an opportunity to discuss another issue, which was briefly mentioned in this case but was not an issue addressed by the court. Can a person who has suffered violence at the hands of their former partner or spouse be obligated to pay support to their abuser in the event of a separation or divorce? One might assume that anyone who has been proven to have committed assault against their partner would forfeit any right to spousal support, but this is not the case.

The case in hand is based in Ontario, and so it is helpful to examine the language of the Family Law Act in that province. With respect to spousal support, s. 33(10) has this to say regarding the conduct of the parties:

The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

Now, in the case at hand, we know only that the male partner was charged with assault. There is no further information about the outcome of the criminal matter, or whether he was acquitted or convicted of that charge. However, one might assume that if he had been convicted, and the female partner had raised it as an issue, that violence would be considered “unconscionable” to the extent that it was an “obvious and gross repudiation of the relationship”. But the standards for meeting the threshold in s. 33(10) are high, and would only be considered in determining the amount of support; not the entitlement to support altogether.

In Alberta, the statutory language is even more restrictive in terms of when conduct should be considered by a court in a decision on spousal support. Section 59 of the Alberta Family Law Act states:

In making a spousal or adult interdependent partner support order, the court shall not take into consideration any misconduct of a spouse or adult interdependent partner, except conduct that

(a) arbitrarily or unreasonably precipitates, prolongs or aggravates the need for support, or

(b) arbitrarily or unreasonably affects the ability of the spouse or adult interdependent partner having the support obligation under the order to provide the support.

The only exceptions that will enable a court to take conduct into consideration impact the duration or need for support, or the ability to pay support. Taking the case at hand, if the woman had been assaulted and suffered injuries that impacted her ability to earn an income, this would affect her ability to pay support. In those circumstances, perhaps support would not be ordered. However, the moral issues surrounding abuse, such as requiring a person to pay an income to someone who has subjected them to physical or emotional violence, are not a factor. Again, we don’t know the circumstances of this particular case with respect to the assault claim, or the criminal proceeding. But if the man was found to have committed assault and was charged, it appears unlikely this would have had an effect on the spousal support order.

Mincher Koeman Family Lawyers for Comprehensive Spousal Support Guidance in Calgary

At Mincher Koeman, our family lawyers have considerable experience in assisting clients with negotiating and securing spousal support orders. We are highly knowledgeable on all factors relating to support awards, including the federal Spousal Support Advisory Guidelines, we are skilled at identifying and locating hidden assets, and we always attempt to resolve spousal support matters in the most efficient way possible. If you are in need of legal advice with respect to spousal support, please contact our office to make an appointment to discuss your matter with one of our lawyers by calling us at 403-910-3000 or by contacting us online.

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