Canada: When It Comes To Support Payments, ‘First Families First' Is The General Rule

When a husband has an order that requires him to pay support to his former wife, what happens when he re-marries and takes on the support of his new wife and her children?

In Canada, where about 40 per cent of married couples divorce, and more than 80 per cent remarry, this is a common problem, and it is often left up to the courts to decide where to draw the line.

But those who assume that their new familial obligations, however onerous, should earn them a break on their previous responsibilities can be in for a rude awakening.

A spouse who already has support obligations makes a conscious choice when repartnering. This gives rise to the "first families first" principle.

Most often, a support payor's obligations to a first family take priority over subsequent obligations to a second family.

But when the prior obligations affect the second family too, which family should bear that burden? An appeal from the Superior Court of Justice by Ontario's Divisional Court confronted this issue head on.

In Dean v. Dean, the husband and his first wife were married for 13 years and had no children. The first wife had significant health problems which prevented her from working. When the parties settled, the husband agreed to pay spousal support to the wife for an indefinite period of time.

At the time that the consent court order with his first wife was made, the husband had already moved in with his girlfriend and her three children from a prior relationship.

After several years, however, the children's biological father demanded that the husband adopt his three children. (Adoption absolves the biological father of his obligation to pay child support.)

The husband agreed, adopted the three children and married his girlfriend.

Then, after the death of a close friend (a single parent), the couple adopted the deceased friend's child. The new family bought a bigger home, upgraded their vehicles and paid down some debt.

Not surprisingly, given his new responsibilities, the husband asked the Court to reduce his support obligations to his first wife.

In order to vary a court order for child and spousal support, the change must be material. The onus of proving the change is on the person seeking it and the change cannot be temporary.

The motions judge found the husband's actions "altruistic." She agreed that the adoption of his new wife's three children and the adoption of their deceased friend's child — as well as health issues facing the husband and a change in circumstances that prevented the wife from leaving the home to work — were a material change. The support order was reduced.

When the first wife appealed the decision, however, the Divisional Court quickly decided that the husband's health was not a material change. The Court then looked at the husband's decision to adopt and his new wife's inability to work outside the home.

Unlike the motions judge, the Divisional Court was singularly unimpressed with the husband's altruism and decided that it was obliged to recognize "first families first".

The Divisional Court decided that the motions judge had not reviewed the husband's financial circumstances in sufficient detail and did a deep dive into the financial decisions the husband and his new wife had made.

Rather than being impressed with the husband's altruism, the Court was critical of the husband for failing to consider how they could make up the loss of the child support payments from the biological father. Nor was the Court amused that the husband took on additional expenses with a move to a larger, more expensive home and paid down debt — while defaulting on his support obligations to his first wife.

The Court considered "how the husband could remedy the financial problems he had voluntarily created and assumed." They mused that the husband could sell the house, rent a home and access the equity in the new house and that the new wife could contribute to the family income through work outside the home in the evenings when the husband was available to look after the children.

The Divisional Court then set aside the order reducing the spousal support payable to the first wife and re-instated the original indefinite spousal support order.

For the 80 per cent of Canadians who re-partner, many of whom have existing financial obligations to a first family, it's obviously risky business to assume that a new family will reduce existing obligations.

A support payor who voluntarily assumes an obligation for an existing family and then seeks to reduce his obligation to the first family should expect to be subjected to a microscopic examination of his finances and his financial plan when the decision to take on the new family was made.

Nor will the investigation be limited to the payor, it seems. It may include an examination of the new spouse's ability to contribute to the new family unit — through support from a former spouse or from her own work outside the home.

Most Canadians who re-partner do not consider the financial ramifications of their decisions until they find themselves in a financial squeeze. It's clear from the Divisional Court that the "first family first" principle means they should.

Originally published by Financial Post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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