Spooge, could you clarify what you mean by illicit? If you mean illicit in terms of being contrary to law, the fact is that having affairs is not illegal in Ontario. If you mean illicit interms of being contrary to accepted morality, I then ask you what business does the government have in the bedrooms of the nation.
Let’s have a look at illicit behaviour. A husband really likes a new Thunderbird. He likes it so much that he tells the car dealer that although his wife is going to kill him because of this, he will buy the car and pay for it by having $1,000 per month deducted from his paycheque. His wife finds out that he made this illlicit deal. Should the dealer be compelled to take back the car and refund the money to the husband?
Some people will have long-term affairs in which they fall into dependency, particularly through child-rearing rather than full income earning employment. That will not change regardless of what laws are made. Some of these relationships will collapse, leaving the problem of who will provide for the dependant until the dependant is back on track economically. Should the state or the spouse take on this responsibility?
Personally, I’d rather not have my tax dollar going toward providing welfare to dependants when their spouses could provide support, and I don’t really care how many dependants a person has, or whether those spouses are due to illicit relationships or not. Thus I support the principle of spouses being liable for spousal support regardless of the number and type of relationships they have.
Concerning the matter at hand, I am curious to see what quantum is decided upon if the appeal is granted, given that the second spouse knew that she was second in line after the wife in terms of recognition of the relationship, and given that in all those years all she required for support was child support. With the test being need for support and ability to pay support, the second spouse may be awarded support at a relatively low level.
Ummm… Can somebody explain what ‘spousal support’ is ?
I understand ‘child support’, but is this different ? Surely the mistress isn’t getting supported by the married couple ? How is this legal ? I didn’t think a divorced woman was supported anymore (after the divorce), let alone a mistress. Support for the children, yes, but ex-wives ? Can somebody clarify, please ?
Slightly off track, but interesting none the less.
Usually a spousal support award is periodic, rather than lump sum. Thus if a support payor goes on to a second relationship, the support obligtation to the first spouse is not counted as part of the net family property of the support payor and the second spouse when that second relationship fails. That way the second spouse does not take a hit in the division of assets due to the payments being made to the first spouse.
Now what if the spousal support to the first spouse was ordered to be made by lump sum, but then the payor delayed paying until after the separation from the second spouse. Could the support payor then include the support debt in the net family property of the failed seond relationship, and thus gouge the second spouse for half of the support owed to the first spouse? I think that the support payor could make such a claim, and that the second spouse would have to fight it off with a request for an unequal division of property.
I don’t mean anything. That’s what they called it in the linked article.
Goo, the law is different depending on where one lives. The case being discussed is in Ontario, Canada. In Ontario when married people separate, they can ask for custody, access, child support, spousal support, division of net family property, and divorce, but if they are common law rather than married, they can ask for all of the above with the exception of divorce or division of net family property. In the next few years, it is probable that common law couples will become able to ask for a division of net family property.
Child support and spousal support are separate. Regardless of whether there are children involved or whether there is child support, for a married or common law spouse to get spousal support for himself or herself, he or she must prove a need for such spousal support, and the other spouse must have an ability to pay.
Imagine that you hold down a job for a decade while your new hubby takes a university degree and gets established in the business world. Then imagine that you leave your job to raise a flock of Goobers and Gooberettes for twenty years, while Mr. Goo becomes more and more successful in his job. The family savings go to paying for the kids’ univesity education, but by the time you and Mr. Goo are in your mid-fifties, your debts are cleared, and he is making a darn good income. Having little education and few job skills, you can not get work at anything other than cleaning or fast food service, but it does not matter as long as you are with Mr. Goo. But then he takes a hankering to some young thing and leaves you.
Is it fair that you are left scrabbling to make ends meet despite his having a high income that he otherwise would not have but for the sacrifice to your career you made by putting him through school and then raising the kids? That’s why spousal support is awarded.
The court will look at all the factors before deciding how much support should be owed. In general, in Ontario the court orders enough support for the wife to get back on her feet economically. Thus a young woman with a good degree and a job appropriate to her degree would not recieve much if anything in spousal support, whereas a woman in the circumstances described above would get a high level of support for the rest of her life. It all depends on the circumstances of each case.
Over the years, in Ontario there has been a gradual recognition of common law relationships. Thus when common law partners split, they must still provide support for children of their relationship. When the relationship has been over three years, then it is possible to make a claim for spousal support as per above. (For the case at hand one must note that the law dealing with such matters does not use the term relationship, but instead uses the term cohabitation.)
It is possible for a person over a period of time to have several marriages and/or several common law relationships, and end up paying child support and/or spousal support to several past-spouses. In the normal course, a fellow has a marriage or common law relationship, splits, begins paying support to spouse number one, then has a second marriage or common law relationship, splits, begins paying support to spouse number two in addition to spouse number one, and so on and so on until he defaults on payment to any of the ex-spouses and either shoots himself or runs off to Bermuda with a young thing. However, in the matter at hand, the fellow did not move from one relationship to the next, but rather carried on two relationships at the same time.
The technical question the court is answering is whether cohabitation can include a twenty-year affair invovling the raising of a child (remember, the statute uses the word cohabitation rather than relationship). The underlying policy issues are twofold: first, should a person who otherwise would be liable for support be able to avoid such liability by reason of being married to another person at the time of the relationship; and second, if a support liability is found, should the quantum ordered for the second spouse be set so as to protect the first spouse from a negative impact.
In general in Ontario, it is commonly accepted that if a fellow runs through a series of wives or common law partners, then it is his own fault if he gets dinged for support by several of them, and it is an unfortunate reality that if he has enough support orders by various parties against him, at some point he will be able to go to court and get them reduced because he does not have enough money to pay them all in full.
I don’t see how the relationships being concurrent rather than serial make any difference to the policy issues upon which the court must decide, for the court will look at need and ability, not when who was poking whom. Similarly, I doubt if the court will get too bogged down over the extension of cohabitation to include relationships in which the parties are not living together, given that there are many such relationships not involving affairs.
Muffin thank you very much for the clarification. You were extremely informative 
I still disagree with spousal support, as it is what I thought it was, but your explanation was very interesting, and made me think about my opinions on the matter.
Thanks again
In Ontario, does previous reliance or reasonable expectation of reliance on the supporting spouse’s salary come into play? Because that’s what I see missing here. I don’t see where she has ever depended on him to assist her in her living expenses, and so it seems that that should end the question right there, the co-habitation question is not even relevant. One way I think of spousal support is as allowing the lesser earning spouse to be able to live somewhat in the lifestyle he or she had been accustomed to during the course of the marriage instead of suddenly slamming into poverty when the relationship is over. Unless he’s been handing over $3000/month for years, she’s asking for way more than she got during the course of their relationship.
Lack of reliance is not a bar to making a claim for support, but if a claim is made, then reliance figures large in deciding quantum.
In the matter at hand, the court was not looking at reliance, but rather was looking at what consitutes cohabitation.
Here is what the appeal judge in the matter at hand said concerning reliance: