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.
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).
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.
The Court of Appeal in Rozen provided a helpful overview of the framework for spousal support variation proceedings (at paras. 19 to 23):
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:
 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.
 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.
 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.
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.
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.
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