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Your Ex’s Remarriage Doesn’t Always Mean An End To Your Support Obligations

The Effect of Re-Partnering on Spousal Support: 

Re-partnering after a separation or divorce is becoming increasingly common. Following the breakdown of a relationship, a spouse may be obligated to pay spousal support to their former partner. If the recipient spouse re-partners, this may have an effect on payor’s spousal support obligations. 

Types of Spousal Support: 

To understand how re-partnering can affect a spousal support obligation, it is first important to understand the basis that the recipient spouse was entitled to receive support. There are three bases of entitlement for spousal support: 

  1. Contractual; 
  1. Compensatory; and, 
  1. Non-Compensatory or Needs-Based. 

Contractual spousal support is paid pursuant to a contract or agreement between the parties. Compensatory spousal support is paid due to a disadvantage suffered by the recipient during the marriage (ex. foregoing a career to raise children and allowing the other spouse to earn an income). Non-compensatory, or needs-based, spousal support is paid based on economic hardship experienced by the recipient as a result of the relationship or the breakdown of the relationship, such as a significant drop in their standard of living since the separation. 

Effect of Re-Partnering on Spousal Support: 

Re-partnering does not automatically terminate the recipient’s entitlement to receive spousal support. Whether support will continue, be reduced, or cease will depend largely on the basis for support as set out above. 

In Kelly v Kelly, the Court stated that the effect of re-partnering on needs-based support is more significant than  if support was based on compensatory or contractual basis. Specifically, re-partnering does not compensate the recipient spouse for what they gave up during the original relationship, such as career opportunities.  

In contrast, non-compensatory or needs-based support rests on the “basic social obligation model of marriage”. Under this model, where a party has demonstrated a need for support, the primary responsibility falls on the party’s former spouse to provide for their ex-partner. When the recipient spouse re-partners, the social obligation model shifts the burden of meeting that need to the new spouse. This shift will take place over time depending on the length and stability of the new partnership. 

As a word of caution, when seeking to reduce support based on a former spouse re-partnering, it is important to consider first whether the spouse’s re-partnering was foreseeable at the time the initial support order was made. 

For example, in Bhupal v Bhupal, the Ontario Court of Appeal refused to terminate the payor’s spousal support obligation due to the recipient’s re-partnering. The recipient had been open about her longstanding relationship with her new partner. At the time the parties agreed on a settlement, the payor knew that the recipient “was in a serious relationship that was heading toward marriage”. 

Since the payor knew of the re-partnering when he agreed to pay spousal support, he was unable to argue that support should be reduced on the basis of that same re-partnering. 

When considering revising a spousal support order or agreement it is important to understand why the recipient spouse was entitled to receive support.   

If you require assistance with a family law matter, speak to a family lawyer at McKenzie Lake Lawyers LLP by calling (519) 672-5666. 

This article was written by Family Law Lawyer Hilary Jenkins and Articling Student Aaron Ender.

Nov 16, 2021