Wife’s Support Premised on Speedy Return to Work – Is 22 Years Long Enough?Choquette v. Choquette, 2019 ONCA 306 (CanLII)
In a recent case decided by the Ontario Court of Appeal called Choquette v. Choquette, the Court had to consider whether a former wife’s spousal support should end after 22 years, even though she was not well-positioned to make herself economically self-sufficient after more than two decades of being out of work.
The husband and wife had separated after 15 years of marriage, and divorced was finalized two years later. During the marriage, the wife had left her job in commerce to raise their two children, while the husband continued working in the securities field where he earned a very good income for the family. In most recent years, he earned more than $1,000,000 per year.
During their 1996 divorce proceedings, the husband had been ordered to pay the wife spousal support of $4,750 per month, indefinitely. However, that award was predicated on the assumption that the wife would return to the workforce quickly.
She never did so. She had planned to become self-sufficient, and obtained both her CMA accounting designation and a real estate agent’s license, but these alternate career paths did not come to fruition.
So the husband continued to pay spousal support for 22 years. This was virtually the wife’s only source of income, and her current net worth was about $800,000. Finally, when he was on the brink of retirement, the husband applied before a lower court judge to have the initial spousal support order changed, to have it terminated.
The now 62-year-old wife countered, by asking to have it increased, to $15,000 per month. As the Appeal Court explained:
But she argues that it is too late in the day for her. She is not now capable of supporting herself at the standard of living the family enjoyed during the marriage, no matter what the incentive.
At that lower court hearing the wife had argued that she was frustrated in her attempts to find work because of the residual impact of having been out of the workforce and at home with the children for ten years during the marriage. During the marriage she had also moved to Toronto, where she had no business contacts, and revealed that she suffered from depression, which prevented her not only from obtaining meaningful work, but also from even looking for work.
Despite these arguments, the husband’s motion was granted and his support obligations to the wife came to an end. The lower court judge concluded that the wife had been capable of becoming self-sufficient relatively quickly, and that her failure to do so was a material change in circumstances that warranted terminating her support entitlement.
The wife appealed to the Ontario Court of Appeal, unsuccessfully. The Court found no legal basis for overturning the previous unfavourable ruling.
In rejecting the wife’s argument that earlier judge had placed too much emphasis on self-sufficiency, the Appeal Court looked at the legislation. Although the provisions of the Divorce Act do not require a spouse to become self-sufficient, it does direct that a support order should encourage a former spouse to become so, but only “in so far as practicable.” This aspect was therefore not the turning-point as to whether the wife should still be entitled to support at this late stage.
Next, assuming that the original order in 1996 was based on compensating the wife for the economic and other effects of the marriage, there was nothing to suggest that previous judge had been wrong in concluding – on these facts – that support should not go on in perpetuity.
Finally, the Appeal Court also concluded that the lower court judge’s order to terminate the 1996 support order – rather than merely vary it – was not needlessly extreme in the circumstances. The mere fact that there was a disparity between the current financial resources of the husband and those of the wife was not a legal reason to continue to support indefinitely.
While admitting that the result “appears harsh, given the resources of the [wife]”, the Appeal Court found the lower court had not made any evident errors, and it confirmed that prior ruling. The Court confirmed that the wife’s entitlement to spousal support – after 22 years and with no career in sight – was now at an end.
For the full text of the decision, see: