Case law: Variation of spousal support

Case law: Variation of spousal support

Black v Black 2015 CarswellNB 449: This is a Court of Appeal decision from New Brunswick, involving a marriage of just over 8 years, with no prior cohabitation and no children. The Court of Appeal characterized it as a short-term non-traditional marriage for the purposes of assessing spousal support.

In the separation agreement negotiated by the parties about a year after separation, the husband agreed to pay spousal support in the amount of $750/month plus health insurance premiums.  The separation agreement also stipulated that there would be a review of the spousal support after 4 years, which would include updated financial disclosure by both parties and a review of any changes in either party’s circumstances. The subsequent divorce order incorporated these provisions.

About three years before the parties separated, the wife had become ill and withdrew from the workforce.

In 2011, the husband’s business failed and he filed for bankruptcy.

The motion court judge accepted the wife’s testimony that she was seriously disabled and her living expenses had increased post-separation. He also accepted that she had had a short-term gambling problem after separation. He noted that the husband had remarried and was sharing expenses with his new spouse. As a result, the judge found that there had been a material change in circumstances, the wife had ongoing financial needs and the husband had the ability to pay. He extended the spousal support payments and increased the amount to $1,000/month plus the medical insurance premiums.

The husband appealed. The Court of Appeal agreed with the husband, finding that the motions judge had made reversible errors in principle. The Court noted in particular that the wife did not have an automatic right to share in her husband’s increased post-separation income (which he had as a result of his marriage).

However, the Court of Appeal also found that the husband was unable to demonstrate a material change in circumstances such that would allow the spousal support he was paying to be terminated.

The final outcome of this case was that the husband was required to continue paying spousal support in the original amount of $750/month plus medical insurance premiums, the amount of which were somewhat adjusted.

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