Spousal Support Advisory Guidelines: The Revised User's Guide

16 The Recipient’s Remarriage or Repartnering (SSAG 14.7)

The remarriage or repartnering of the support recipient will most often arise as an issue in the context of a variation or review, but in some cases may also be an issue on an initial application.

If the recipient’s remarriage or repartnering is the basis for an application for variation, the initial threshold of a material change in circumstances must be met. In some cases, it may be an issue whether the new relationship was “foreseen”, i.e. considered or taken into account, in the previous order or agreement. However, as discussed above under “Variation and Review”, some courts continue to misapply this test, as for example, in Morigeau v. Moorey, 2015 BCCA 160 where the Court found that the wife’s repartnering was “foreseeable” and hence not a “material change” because she was “seeing” the new partner at the time of the previous order (but not cohabiting).

Under the current law the remarriage or repartnering of the support recipient does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated. Much depends upon whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.

At the appellate level, several decisions of the B.C. Court of Appeal have dealt with this issue; see Zacharias v. Zacharias, 2015 BCCA 376 (29-year traditional marriage, continued entitlement on compensatory grounds, spousal support reduced by half but not terminated); Morigeau v. Moorey, above (order primarily compensatory so no material change), Lee v. Lee, 2014 BCCA 383 (20-year marriage, no children, husband claiming support, significant income disparity, husband repartnered with woman having income similar to that of wife, entitled only to short period of transitional support, one year). In Zacharias the Court of Appeal cautioned about the difficulties of clearly segregating the compensatory and non-compensatory elements of spousal support after a long marriage. The appeal court disapproved of the reasoning of the chambers judge who had determined that half of the original order was compensatory and the other half non-compensatory, with the result that he reduced the spousal support by half because of the wife’s remarriage. The Court of Appeal nonetheless upheld the result but for different reasons—by testing the chambers judge’s support order against the SSAG range if the wife’s income were to include her new husband’s income and finding that it was mid-range.

For recent trial level decisions that provide good discussions of the issue see Rozen v. Rozen, 2014 BCSC 3164 (23-year marriage; strong compensatory claim so re-partnering irrelevant, but old order and husband underpaid ss when compared to SSAG); Hutchen v. Hutchen, 2014 BCSC 729 (17-year marriage, compensatory claim not exhausted, wife’s relationship very new, review in 2 years); Landry v. Mallette, 2014 ONSC 5111 (husband retires, Boston needs-based exception does not apply because wife’s needs being met by income of new partner, new relationship more permanent at this point); Cramer v. Cramer, 2013 ONSC 4182 (husband custody, waiver of spousal support in separation agreement set aside using Miglin, wife entitled to on-going spousal support on compensatory basis but reduced to $2 because repartnered and no current need, wife’s household higher standard of living than husband’s, amount could be increased if new relationship ends); Boland v. Boland, 2012 ONCJ 102 (20-year marriage, down from high end to mid-range due to wife’s cohabitation, strong compensatory claim, wife limited benefit from new relationship, careful decision, nice review of principles); and Bockhold v. Bockhold, 2010 BCSC 214 (continued entitlement to compensatory support despite wife’s remarriage).

At the time of the drafting of the SSAG we concluded that the outcomes in these cases were not predictable enough to construct a formula. In Colley v. Colley, 2013 ONSC 5666, Quinn J. lamented this absence:

[74] However, it is unfortunate that the SSAGs do not contain any formula to reflect the remarriage or re-partnering of the recipient spouse. (The cases on re-partnering are an unfulfilling read and are not of much assistance beyond the expression of general principles. I yearn for more specific guidance in this area and would gladly trade some flexibility for a measure of predictability.)

As case law in this area develops, it may be possible at some point in the future to revisit this issue of a post-repartnering formula.

In the meantime, even though the SSAG do not provide any formulaic adjustment for the recipient’s remarriage or repartnering, this does not mean that the SSAG are irrelevant in such cases. In Remillard v. Remillard, 2014 MBCA 30, the Manitoba Court of Appeal ruled that the trial judge had erred in concluding that the SSAG were irrelevant because of the wife’s remarriage. The Court stated at para 89 that “even where there is a re-partnering, the SSAG can still be a useful tool as a litmus test for the reasonableness of a support award”. The B.C. Court of Appeal adopted a similar approach in Zacharias, above, stating:

[62] The spousal support guidelines are not directly applicable in this case, because it is a case of variation involving re-partnering. That said, they do provide some indication of amounts of support that are reasonable at particular income levels, and can be of indirect assistance in setting support amounts.

In cases where it is determined that the recipient’s remarriage or repartnering requires some adjustment of spousal support, the SSAG ranges can still be a helpful starting point for the discretionary analysis.

  • The most interesting of the older remarriage cases is M.(K.A.) v. M.(P.K), 2008 BCSC 93, because Justice Barrow did try to construct a formula to guide a step-down of spousal support, by reducing support by 10 per cent a year until it ended 10 years later, this after a 21-year traditional marriage. A similar approach was recently adopted in Bishop v. McKinney, 2015 ONSC 5565 (provisional order, 20-year marriage, wife remarries 10 years after separation; spousal supported reduced by 20 per cent a year until it ends after 5 years).
  • Step-down orders are one common solution in these cases, even if not formulaic: see Colley, above, (23-year marriage, wife new relationship 13 years after separation, step-down order going below SSAG but support not terminated ); Balazsy v. Balazsy, [2009] O.J. No. 4113 (S.C.J.); and C.L.M. v. R.A.M., 2008 BCSC 217.
  • In some cases remarriage or repartnering may be dealt with by location in the range for amount, i.e. by moving the award down into lower part of the range; see Boland,above (down from high end to mid-range due to wife’s cohabitation, strong compensatory claim, wife limited benefit from new relationship) and Macey v. Macey, 2013 ONSC 462 (16-year marriage, wcs formula, low end of range taking into account wife’s repartnering, husband’s mandatory pension contributions and s. 7 expenses).
  •  Another solution is to reduce spousal support below the formula range in these cases. This was the solution adopted by the Manitoba Court of Appeal in Remillard, above(11 year marriage, special needs child, amount reduced $1000 below SSAG mid-range to take into account wife’s remarriage). See also Watkins v. Watkins, 2013 BCSC 1983 (23 year traditional marriage, amount reduced by half, questionable finding that award largely non-compensatory); Mayer v. Mayer, 2013 ONSC 7099 (9-year relationship with children, with child support formula, shared custody, below low end of range and duration fixed at 4 years to take into account contributions of wife’s new partner); Driscoll v. Driscoll, [2009] O.J. No. 5056 (S.C.J.); Rakose v. Rakose, 2008 BCSC 1165; and Coolen v. Coolen, 2005 NSSC 78.
  • Yet another solution is to take into account some part of the income of the new spouse or partner as the recipient’s income before the SSAG formulas are applied. This was the approach used by the B.C. Court of Appeal in Zacharias, above, to test the reasonableness of the chambers judge’s reduction of spousal support by half—if the new husband’s entire income were included the result was at the mid-range of the SSAG. See also Politis v. Politis, 2015 ONSC 5997 (interim, wife’s need as established by her budget reduced by half of new partner’s contribution to household, amount below low end of SSAG range).
  • In some cases remarriage or repartnering will result in the termination of spousal support, either immediately or at some fixed point in the future; see Lee, above, M.(K.A.) v. M.(P.K), above; Bishop v. McKinney, above; Lalonde v. Lalonde, 2014 ONSC 4925 (25-year marriage, termination after 10 years, wife’s repartnering one factor); A.M.F. v. D.F., 2013 BCPC 60 (discussion of impact of remarriage on duration under with child support formula); Mayer, above; and Redpath v. Redpath, 2008 BCSC 68, upheld on appeal 2009 BCCA 168 (new spouse higher income than payor).
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