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.