The court has fairly broad discretion when it comes to making an order for spousal support. Unlike child support, where the amount owing is calculated using a table, spousal support calls for the court to consider several different factors in determining the amount owing. The court must assess the means, needs and circumstances of the parties, including the length of cohabitation and the functions performed by each spouse during cohabitation.
A spousal support order is going to be tailored to the parties in both quantum (amount to be paid) and duration (length of payment). One challenge faced by many former couples with a spousal support order is a new relationship/ re-partnering for the recipient of the support. For many, it doesn’t seem fair that spousal support orders are continuing when the payee is in a new relationship, especially when they are financially dependent on the new partner.
An individual can apply to the court to vary the existing spousal support order on the basis of a “material change” in the conditions, means, needs, and other circumstances of either party. The Supreme Court of Canada defined the test for varying a spousal support order in MP v LS 2011 SCC 64: a court must be satisfied that there has been a material change in circumstances since the making of the prior order or variation, meaning a change that, “if known at the time, would likely have resulted in different terms”.
The case law is mixed in terms of whether a new partner constitutes a material change to vary a spousal support order. In Woito v Lajoie 2012 ABQB 103, the Court summarized the application of material change to the recipient spouse as follows: “Having a new partner may be a material change depending on the nature of the relationship and the ability of the new partner to contribute to household expenses”. Basically, the new partner is significant to the extent that they are contributing to the “needs” of the payee.
Additionally, the type of spousal support is relevant to variation based on re-partnering. Compensatory spousal support is normally awarded because of an economic disadvantage caused by the marriage. Conversely, non-compensatory spousal support is needs-based support. This recognizes that there is an economic breakdown and one partner requires assistance to meet their basic needs. The Court in Pickett v Walsh 2016 ABQB 222 stated the following about compensatory support and a recipient’s new relationship:
“Re-partnering does not entail that compensatory support comes to an end. The foundation for the compensatory claim lies in the relationship between the original spouses. A new partner or spouse is not responsible for having “caused” the payee spouse’s economic injury and the responsibility for that injury is not transferred to the new partner or spouse”
In contrast, re-partnering may bring non-compensatory support to an end, since the new partner takes on the obligation of support for the payee spouse.
Although there is no simple answer to whether a new relationship ends spousal support obligations, the lawyers at Vogel LLP are well equipped provide guidance through this tricky area of a divorce. Our team of family law lawyers are available for consultation by telephone, Skype, or Zoom and can provide insight into all family and divorce law issues.