Ontario Court of Appeal affirms judge’s award, which includes interest-free home loan
In a recent case, the Ontario Court of Appeal upheld the trial judge’s spousal support award although he might have narrowly assessed the evidence about the exes’ respective roles during the marriage and their needs after the marriage.
The parties married in 1993, had children born in 1994 and 1996, and separated in 2015. The parents, who were both chartered accountants, owned a mortgage-free house worth around $1.8 million at the time of the trial in 2021.
The mother moved for spousal support and child support. In 2019, a judge dismissed the child support claim due to insufficient evidence about whether the children attended university full-time. The judge awarded the mother interim spousal support retroactive to Jan. 1, 2019 but did not determine the amount.
In 2020, the father started paying her $4,000 per month, with the payments to be offset against the awards ultimately made at trial.
In 2022, Judge Mario Faieta of the Ontario Superior Court of Justice awarded her retroactive monthly spousal support of $2,500 – which was at around the mid-range of the federal Spousal Support Advisory Guidelines – until the father’s retirement from his current employment. He also transferred the matrimonial home to the mother.
The father’s share of the proceeds from the transfer would be in the form of an interest-free mortgage to the mother until she dies, decides to sell the home, or stops living there full-time, the trial judge said.
The mother appealed. She alleged the following:
- Monthly spousal support of $15,000 to $20,000 was proper
- The awarded monthly amount of $2,500 was too low
- The trial judge failed to consider the significant disproportion in their incomes, the difference in their contributions to raising the children and looking after the household, and the role that she played throughout the marriage
- Spousal support should not end when the father retires from his current employer
Spousal support award affirmed
In Nairne v. Nairne, 2023 ONCA 478, the Ontario Court of Appeal dismissed the appeal except for modifying one paragraph to remove the reference to a specific company, in case the father would work for a different employer before retiring.
The appellate court acknowledged that the trial judge arguably took a narrow approach to arrive at the conclusion that the mother established a “questionable” needs-based entitlement, not any compensatory entitlement.
However, the appellate court considered the judge’s award as a whole, including the benefits the mother would receive from the interest-free mortgage, and decided to defer to his decision.
The trial judge made no reversible errors in deciding the quantum or duration of spousal support and considered all the relevant factors, including those in s. 15.2 of the Divorce Act, 1985 and in s. 33(8) of Ontario’s Family Law Act, 1990, the appellate court said.
The judge also did not err when he terminated spousal support upon the father’s retirement, given that the mother would keep benefiting from the interest-free mortgage, the appellate court added.
