Faced with a variance application seeking termination of spousal support, the Court of Appeal for British Columbia in Rozen v. Rozen, 2016 BCCA 303 answered an important question: does spousal support end when you remarry? The short answer is no. The facts of each case dictate whether spousal support ends when you remarry or re-partner.
Joint decisions made in the context of a long traditional marriage
Mr. and Ms. Rozen divorced in 1996 after a long, traditional marriage. Early in their 20-year marriage, their financial circumstances permitted only one of them to continue with university, so they decided that Mr. Rozen would continue with his education. He obtained a Master’s degree in Business Administration and became a high-income earning chartered accountant, achieving a partnership position at KPMG in 1987. Instead of pursuing her education, Ms. Rozen took employment with the federal government. She took time out of the workforce in 1982, 1984 and 1986 when their children were born. She returned to work part-time in 1987, while continuing to assume primary care of the children, including a child with Asperger’s Syndrome.
When their marriage ended, Mr. and Ms. Rozen entered into a settlement which included an agreed amount of spousal support in the amount of $2,350 per month. A 2003 spousal support review resulted in an Order that Mr. Rozen continue to pay spousal support for an indefinite period in the amount of $2,350 per month (reasons indexed as C.R. v. A.R., 2003 BCSC 973).
Ex-husband asks: Does spousal support end when you remarry?
In 2014, after approximately 18 years of spousal support payments, Mr. Rozen applied to have monthly spousal support of $2,350 terminated on the main grounds of his drop in income from retirement and Ms. Rozen’s re-partnering. By that time, Ms. Rozen had been cohabiting with her new partner at his home, and renting out her home, thereby deriving income. The Chambers judge dismissed Mr. Rozen’s application on the grounds that the support award was compensatory and entitlement was ongoing. Ms. Rozen’s re-partnering had no bearing on the issue of achievement of compensation. The Court of Appeal agreed and dismissed the ex-husband’s appeal.
Basic framework for spousal support variances
The Court of Appeal in Rozen provided a helpful overview of the framework for spousal support variation proceedings (at paras. 19 to 23):
- The basic legal structure of a variation is found in s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.):
- First, the court must be satisfied that there has been a material change in either spouse’s “condition, means, needs or other circumstances” since the last order: section 17(4.1). The applicant bears the onus of establishing a material change.
- Once the material change threshold is met, the court must determine what variation is appropriate in light of the change in circumstances. A court should limit itself to making only the variation justified by that change.
- A variance should serve the relevant objectives of spousal support listed in s. 17(7) of the Divorce Act. The court must consider all four relevant factors listed in s. 17(7), no one being paramount.
- Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse.
- An order of spousal support which is based on compensatory principles should continue until adequate compensation has been made, even if the spouse has achieved a degree of self-sufficiency. Self-sufficiency must be viewed in the context of the marital standard of living.
- Continuing entitlement is always in issue as variance proceedings and can lead to termination of support. If the support has been awarded on a compensatory basis, the fundamental question will be whether the applicant party can establish that compensation has been achieved.
- The Spousal Support Advisory Guidelines are relevant on variation applications as a tool or guide to be considered as to either quantum or duration. They are not, however, determinative.
Court of Appeal answers: Does spousal support end when you re-marry?
When a spousal support recipient forms a new relationship, he or she usually receives economic benefits under that relationship. In light of those benefits, does spousal support end when you re-marry? The Court of Appeal in Rozen answered that question as follows:
[55] The ultimate question in this case is whether the recipient has continuing entitlement to compensatory support. The extent to which economic benefits conferred and detriments received from marriage or its breakdown have been fully compensated by spousal support to date is the dominant consideration. Re-partnering “generally” does not redress the basis for compensatory support: Morigeau at para. 39. Therefore, the new partner’s means will generally not be relevant in variance applications of compensatory orders.
[56] However, there is no bright line rule that re-partnering will never be considered on a variation of a compensatory order. It may be relevant for instance, as it is in this case, when the re-partnering enables the recipient spouse to use other assets to generate income.
[57] These awards and variation orders are very fact-based. They rely to a great extent on the discretion of the judge. It would not be appropriate to eliminate the factual matrix of re-partnering from the consideration of the judge in every case, and as a matter of law.
Application of the spousal support variance framework in Rozen
While Mr. Rozen’s retirement was a material change in circumstances warranting an assessment of whether a variance is necessary, the spousal support order in Rozen was primarily compensation-based. Thus, the singular issue was whether Ms. Rozen’s compensation for the economic disadvantages arising from the breakdown of marriage had been achieved. If it had, then her entitlement to support would end.
Ms. Rozen suffered significant disadvantages as a result of the joint decisions made during their marriage: giving up her opportunity for further education, full-time work, and employment opportunities. Conversely, Mr. Rozen enjoyed significant advantages: the opportunity for further education, to focus his efforts on his career, and to obtain very high income employment. In the Court’s view, full compensation for Ms. Rozen was not achieved since marital breakdown and was likely to remain elusive.
The Court further noted that compensation for Ms. Rozen had not been achieved because the $2,350 she had been receiving over the last 18 years was minimal given Mr. Rozen’s working salary. If the SSAG had been in place when the parties had originally agreed to spousal support, the mid-range figure would have been $7,108 per month. Even using Mr. Rozen’s current post-retirement income, the $2,350 she was receiving was not greater than the mid-range SSAG amount.
In this case, Ms. Rozen’s re-partnering had no bearing on the issue of achievement of compensation. The economic benefits of re-partnering were insignificant in light of the substantial ongoing entitlement to compensation being addressed by the modest level of support being paid.
Take home point: Does spousal support end when you remarry?
Spousal support does not necessarily end when the support recipient remarries or re-partners. That does not mean that remarriage is never relevant on an application to vary spousal support. The facts of each case and the basis for the spousal support award will dictate whether spousal support ends when you remarry or re-partner.
