Ontario Civil

Family Law


Spousal support under Divorce Act and provincial statutes

Period of cohabitation should have included period before brief separation

Parties cohabited for three years and five months, then separated for five months, reconciled and cohabited for another two years and three months before marriage, and were married for 11 years. Trial judge granted wife's application and awarded her spousal support for 11 years from date of separation based on finding that length of parties’ cohabitation was 13 years. Judge did not include three years and five months that parties had cohabited before brief separation. Wife appealed on ground that judge erred in determining length of cohabitation. Appeal allowed. Judgment was varied such that husband was to pay spousal support for 14 years from date of separation. Length of parties' cohabitation was 16.5 years. On evidence before judge, his failure to take into account previous period of cohabitation was unreasonable. Period of cohabitation should not have been restarted after separation, but should have included period before brief separation. Appropriate period of cohabitation for purpose of support was 16 years and 10 months, less five-month period that parties lived apart, leaving total period of cohabitation of 16 years and 5 months. For period of cohabitation of 13 years, Spousal Support Advisory Guidelines proposed duration of support between 6.5 years and 13 years from date of separation, so judge’s order was towards upper end of range. Consistent with judge’s assessment, duration of spousal support was fixed toward upper end of applicable range of 8.25 years and 16.5 years for cohabitation of 16 years and 5 months, at 14 years from date of separation.
Whalen-Byrne v. Byrne (2017), 2017 CarswellOnt 14484, 2017 ONCA 729, John Laskin J.A., K. Feldman J.A., and B.W. Miller J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 2428, 2016 ONSC 1172, Douglas J. (Ont. S.C.J.).


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