Spousal Support During Remarriage

Spousal Support During Remarriage

Do you have questions about spousal support during remarriage? You have been paying your monthly spousal support diligently. It has been paid monthly as you agreed or were ordered to. You’ve never missed a payment. You try not to complain about it when talking to your ex.

We have family lawyers in Duncan BC, Ottawa, and Toronto. You can book a meeting with them toll free at 1-844-466-6529

Now you find out he or she is getting remarried in the summer, but they still expect your spousal support payments to come in. You need to know that if you are functioning under a court order dealing with spousal support, your ex getting remarried does not automatically stop your spousal support payments. In fact if you do nothing then your ex can likely have the courts collect support from you until you attend court to deal with the issue.

Spousal Support During Remarriage

When a former spouse enters into a new relationship, you will be tempted to go back to court to cut off your spousal support to that spouse as soon as possible. While this can be effective, you need to remember that common law relationships can be difficult to prove if they are short and the parties do not combine their personal finances or property.

Of course in the event of your ex getting remarried, this issue can be fairly straight forward. Once your ex is married to a new person you should contact your ClearWay Law lawyer about revising your spousal support agreement or to bring a motion to vary your spousal support as soon as possible.

While in some cases the court have upheld certain spousal support orders, typically becoming remarried will be a guiding factor to either terminate or lower spousal support orders from the person’s first relationship.

 

Spousal Support Arrangements

The spouses can formalize their arrangements for spousal support in a separation agreement or prenuptial agreement drafted by a family lawyer. Otherwise, a judge can make one of the following orders regarding the payment of spousal support under the Divorce Act:

  • The support is paid via lump sum
  • Support is paid monthly
  • No support is awarded
  • No support is needed

Similarly if you are getting remarried and receiving spousal support, you need to be aware of what this change in your life will mean for any support orders you may have had from your past relationship. It is a good idea to talk to your ClearWay Law lawyer prior to your wedding on ways to deal with the issue of ongoing spousal support so that you aren’t bombarded with court documents the day after your wedding by an angry ex-spouse.

Alimony- The USA term for support

Spousal support is the Canadian term for alimony. In Canada, we do not call it alimony.

Alimony (support) is the amount paid from one person in the relationship to the other. Being married or common law does not automatically entitle you to support.

Three things are critical if you are looking to get alimony from your spouse:

  1. You must be able to prove that you need it
  2. That you are entitled to it
  3. And that your ex spouse has enough income to pay

The Divorce Act and local provincial family law acts are the two acts that will affect how much support you pay or receive.

Spousal support during remarriage can be very stressful for people. It is best to talk to a family lawyer to see how getting remarried may affect your payments.

How much support do I need to pay?

The family law court will decide how much spousal support the other spouse is entitled to (if any.) It is always better to have a marriage agreement (USA term is prenup) which spells out support from the beginning of the marriage.

The payment plan and terms will change depending on the needs and financial ability of both spouses.

A family law judge often follows the Spousal Support Advisory Guidelines. Divorcemate software is used by our law firm. The same software is used by the family law court. Different law firms and courts may use different software. Spousal Support Advisory Guidelines creates a low end of support, a recommended support amount, and the top level of support.

Ask our family lawyers about Spousal Support During Remarriage.

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When your ex-spouse is bankrupt

Your ex-spouse is trying to avoid a court order by declaring bankruptcy. Can you enforce the order? Or are you out of luck?

A couple we’ll call Sam and Freda, who separated after 10 years, tested Ontario’s Bankruptcy and Insolvency Act. Following lengthy court appearances and an appeal over child custody and access, Sam was awarded $400,000 in costs. But during a review of the couple’s access rights to their three teen and pre-teen daughters, the wife declared bankruptcy. Collecting the award was another story.

Court hearings can go on for years

The access agreement was the result of years of litigation. It gave Freda custody and Sam generous access to visit with their daughters. It soon fell apart when Freda refused to comply. Sam returned to court, where his daughters said they were afraid of and disliked him. The court found their emotions were caused by their mother’s feelings towards her ex-spouse.

The Ontario Superior Court of Justice sided with Sam by finding Freda in contempt of the access order. She kept custody of the girls, but was sentenced to six months’ probation and required to follow the access order. A review of custody and access was scheduled for six months later.

What happens when you don’t comply

Although the review six months later was only 23 days long, it took nine months to conclude. This time, Freda had followed the access order. But their daughters were still alienated. They refused to interact with their father. Sam complained they were rude and disrespectful to him and his new wife. As a result, the court gave custody to Sam. Freda could have access, but only during weekly sessions with the girls’ therapist present.

The court was sympathetic to the mother. Freda could regain custody if she showed she could “promote a loving relationship” between their daughters and both parents. Costs of $400,000 were awarded to her ex-husband.

Deciding what assets are available

Freda appealed. Since she had complied with the access order, the contempt finding was set aside and another custody and access review scheduled in four months. The costs awarded to Sam were reduced to $200,000. Anxious to collect and arguing that she intended to thwart his efforts to collect costs, Sam petitioned the court to obtain the award or ensure it would be paid out, before another review hearing occurred.

The court refused to delay the review, but made a temporary order:

  • Freda was required to provide banking and investment statements for her personal and business finances;
  • she had to produce financial and accounting records for her business;
  • the court set a timetable for the documents to be examined;
  • and she was prevented her from disposing of her RRSP’s and diluting her other assets.

In her defence, Freda filed evidence that she planned to pay Sam’s award. She also denied her ex-husband’s claim that she intended to file for bankruptcy after the custody and access review.

When bankruptcy is declared

The review hearing ensued. During the review, Sam asked the court to enforce the costs by garnisheeing his ex-wife’s registered assets. She retorted that her RRSP’s were a trust. The motion was moot. Freda promptly declared bankruptcy while the review hearing was underway. Her exempt assets (those not available to creditors) were $295,600, she said. Her home was fully mortgaged and worth $275,000. The shares in her business were valued at $1. She had increased her debts by $41,192 between the time she filed the documents the court required and filed for bankruptcy.

Spousal Support During Remarriage. What to do now?

The legal effect of Freda declaring bankruptcy was to prevent Sam from enforcing the $200,000 award, before or after her bankruptcy was discharged. And his former partner could keep her RRSPs. Sam’s next step was to ask the court to annul the bankruptcy or “lift” the stay of proceedings created by the  Bankruptcy and Insolvency Act. Lifting the stay would allow Sam to enforce the award against her registered assets before Freda’s other creditors reached a settlement with her. Fortunately, case law and the Act were on his side.

Bankruptcy affected ex-husband “prejudicially”

The judge ruled that the Act allowed for stays if a creditor would be “materially prejudiced”. In other words, if the size of the debt and the expected loss from not collecting it were significant. Looking to case law, she found other instances where stays were lifted to allow claims to be enforced (Schreyer v Schreyer, 2011 SCC 35 (CanLII), [2011] 2 S.C.R. 605). Finally, she found Freda had paid nothing towards Sam’s award and gone back on her commitment not to declare bankruptcy during the review hearing. Worse yet, during the eight years the litigation had gone on, the ex-wife had alienated the couple’s children from Sam, the court stated.

Spousal Support During Remarriage

All in all, Sam was likely to receive nothing if the bankruptcy proceedings continued or her bankruptcy was discharged. The judge concluded a stay was in order. She disagreed with Freda’s claim that her former spouse could line up with other creditors to collect his award or that her home might increase in value in future. She ruled there was no guarantee the ex-husband would receive anything in either case. Any potential increase in the home’s equity was “speculative.” Freda appealed, unsuccessfully. The dispute cost her another $25,000, in Sam’s favour.

Collecting on a court order can be burdensome. Our family lawyers can help you enforce an order you already have or obtain one if you have custody and access issues. Call us 24/7 at 844-466-6529 or email info@clearwaylaw.com for advice.

What you need to know about custody and access

  • The Family Law Act gives children and youth the right to be heard by the court. Although your children generally won’t attend court, the judge consider their needs and relationship with you. You may pay a social worker, psychologist or psychiatrist to provide an assessment or the court may order one. This assessment will make recommendations to the judge.
  • The Ontario Children’s Lawyer (OCL) may be asked to provide recommendations. An OCL representative will meet with both parents, your children and anyone else who is important in their lives. The judge may ask the OCL to assign a lawyer to represent your children’s interests.
  • Your responsibilities for your children depend on who they normally live with. If you have custody, you will pay for their day-to-day needs and care. Your ex-partner will contribute child support to assist you with this. The amount is determined by the Ontario Child Support Guidelines, although this can be adjusted by the court. You may have to pay for special expenses, such as orthodontics or child care.
  • If your income changes, a lawyer, mediator, arbitrator or the court can increase or, if you have undue hardship due to job loss or other expenses, decrease the amount of child (or spousal) support you pay.

Have questions about spousal support during remarriage? Call us toll free at 1-844-466-6529