Spurgeon v. Spurgeon
[Indexed as: Spurgeon v. Spurgeon]
53 O.R. (3d) 509
 O.J. No. 1117
Docket No. 1135
Ontario Superior Court of Justice Divisional Court
Carnwath, Valin and Epstein JJ.
March 28, 2001
Family law–Support–Spousal support–Wife entitled to receive $350 per week spousal support for life from her first husband’s estate so long as she remained unmarried–Wife remarried at age 56 and separated from second husband one year later–Trial judge erred in over-emphasizing short duration of marriage and fact that wife decided to go into marriage knowing that she would lose her entitlement to weekly payment from former husband’s estate–Wife entitled to support due to economic consequences of marriage and its breakdown–Amount of support should reflect extent of economic disadvantage
–Economic consequences should be shared equally by both parties in circumstances of this case–Husband ordered to pay weekly support to wife in amount of $175.
The appellant was entitled to receive spousal support in the amount of $350 per week from her first husband’s estate so long as she remained unmarried. She married the respondent when she was 56 years old, losing her right to support from her ex- husband’s estate. Her second marriage ended after one year.
She wanted the respondent to compensate her for the loss of the support payments she had been receiving at the time of her remarriage. There was no issue about the respondent’s ability to pay. The trial judge held that the appellant herself had to bear the loss of the weekly support payments. He attached considerable significance to the fact that the marriage only lasted one year and that the loss of support was a direct result of a decision made by the appellant. He found that the appellant was entitled to compensation for work performed for the respondent’s business. He awarded her a lump sum payment of $10,000, which he referred to as one-time lump sum support. The appellant appealed.
Held, the appeal should be allowed.
Absent indications to the contrary, a mutual duty of support is created by marriage. In s. 15 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, Parliament has set out the objectives a support order should serve. No single objective is paramount.
The trial judge erred by over-emphasizing the short duration of the marriage. While the length of marriage is of some relevance, even a brief marriage can give rise to lengthy and perhaps even permanent support obligations. The trial judge erred by equating a short-term marriage to one where a spouse can easily attain self-sufficiency in the short-term. While this may often be the case, it is less likely when the short- term marriage involves older partners such as the parties in this case.
In deciding whether the appellant had discharged the burden of being entitled to support, the focus of inquiry should be the effect of the marriage on her economic prospects. That involved, among other things, a consideration of her economic position before and after marriage. The trial judge specifically found that the appellant had suffered economically in the form of losing the weekly support payments. Given her age, she could not reasonably have been expected to return productively to the work force.
The trial judge also placed undue emphasis on the appellant’s decision to go into the marriage knowing she would lose her entitlement to the weekly payment from her former husband’s estate. The fact that the appellant could have made other choices was irrelevant to the issue of her entitlement to support. Based on these two errors in principle, the decision of the trial judge not to award periodic support to address the economic consequences to the appellant in having lost the benefit of the weekly support payments constituted a reviewable error and allowed the appellate court to decide the appellant’s support entitlement afresh.
The appellant was entitled to support due to the economic consequences of the marriage and its breakdown, and the amount should reflect the extent of the economic disadvantage. The economic consequences have to be shared in an equitable manner by both partners. In the unique circumstances of this case, the consequences should be shared equally. The respondent was ordered to pay weekly support to the appellant in the amount of $175.
Moge v. Moge,  3 S.C.R. 813, 81 Man. R. (2d) 161, 99 D.L.R. (4th) 456, 145 N.R. 1,  1 W.W.R. 481, 43 R.F.L. (3d) 345, apld
Other cases referred to
Harrington v. Harrington (1981), 33 O.R. (2d) 150, 123 D.L.R. (3d) 689, 22 R.F.L. (2d) 40 (C.A.); Mannarino v. Mannarino (1992), 43 R.F.L. (3d) 309 (Ont. C.A.)
Statutes referred to
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, ss. 15, 15(4), 15(5), 15(7), 17
Authorities referred to
Rogerson, C., “Spousal Support After Moge,” (1997) 14 C.F.L.Q. (No. 3) 281
APPEAL from a dismissal of a claim for periodic spousal support. William R. Clayton, for petitioner (respondent). James G. McLeod, for respondent (appellant).
The judgment of the court was delivered by
 EPSTEIN J.:–Mrs. Spurgeon’s first marriage ended in a divorce. The decree ordered her ex-husband to pay her $350 per week support for life, so long as she remained unmarried. When her ex-husband died, the estate assumed this support obligation. Mrs. Spurgeon married Mr. Spurgeon in late 1991 when they were 56 and 62 respectively. As a result, this support was terminated. The parties separated a year later. This case deals with the economic consequences of this brief marriage.
 Their matrimonial trial focused mainly on Mrs. Spurgeon’s support claim and, specifically, her claim for periodic support of $350 per week. The trial judge dismissed this aspect of her claim and she now appeals. The issues to be decided are:
1. Did this marriage or its breakdown cause economic hardship to Mrs. Spurgeon?
2. Given the short duration of the marriage, does Mr. Spurgeon have to pay support and, if so, to what extent and in what fashion?
 The parties had met earlier in life when they were both married to other people. In the fall of 1991, Mr. Spurgeon, a widower, invited Mrs. Spurgeon for dinner during which he pursued the possibility of marriage. She ultimately agreed and they married a few weeks later.
 Mr. Spurgeon is in the real estate development business. In 1972, he undertook an estate freeze and transferred his business to his children. Following the freeze, he continued to run the business as before. He lived frugally, taking out just enough income each year to provide for his basic needs.
 During the courtship, Mr. Spurgeon promised Mrs. Spurgeon a new life including a honeymoon in Portugal and a “dream home”. Mrs. Spurgeon told Mr. Spurgeon that marriage would mean the loss of her weekly support payments. Mr. Spurgeon acknowledged this but, according to Mrs. Spurgeon, said she would not have to worry about her financial future.
 Both parties treated their relationship as permanent. Mr. Spurgeon, as promised, arranged for the honeymoon in Portugal. Mrs. Spurgeon sold her house and gave the proceeds to Mr. Spurgeon to invest. However, the life they envisioned together never did become a reality. No dream home was ever built. Instead, Mr. Spurgeon moved his new wife into a small home he had owned and occupied before marriage. Mrs. Spurgeon found herself working for his business by assuming tasks such as cleaning, painting and wallpapering the rental units.
 Mr. Spurgeon continued to manage his affairs substantially for his own and children’s benefit as before. In order to maximize the company’s resources and his children’s inheritances, he drew a limited amount of income from the business.
 After separation in December of 1992, Mrs. Spurgeon remained in the matrimonial home while Mr. Spurgeon moved into a garage he had renovated. Mrs. Spurgeon continued to work for the business for a brief period until problems developed in consequence of Mr. Spurgeon’s asking for rent. The couple resolved the accounting issues associated with Mrs. Spurgeon’s work and her occupation of the former matrimonial home. After that resolution, Mrs. Spurgeon lived in the home for four more months without paying rent.
 For a period of time in 1994, Mrs. Spurgeon went back to work for the business in an unsuccessful effort to reconcile. When this effort failed, the parties went their own ways permanently. Mrs. Spurgeon ultimately secured part-time employment that, at the time of trial, was providing her with a modest income. Mr. Spurgeon stayed in the renovated garage in which he had previously lived and continued in much the same fashion as he had before the marriage.
The Judgment at Trial
 The trial judge found that both Mr. and Mrs. Spurgeon were in virtually the same financial circumstances as before the marriage, with one glaring exception. Mrs. Spurgeon no longer had the support income of $350 per week.
 The primary issue at trial was Mrs. Spurgeon’s claim for periodic support in the amount of $350 per week. In other words, Mrs. Spurgeon wanted Mr. Spurgeon to compensate her, to the age of 65, for the loss of the support payments she had been receiving at the time of marriage. There was and is no issue about Mr. Spurgeon’s ability to pay this amount of support.
 In holding that Mr. Spurgeon was not responsible for the loss of this support, the trial judge said “the case law indicates that marriage doesn’t give an automatic right to support for the rest of one’s life” and that he had considered the factors in s. 15(4) in deciding what was reasonable and fair. In applying the objectives of s. 15 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 in the circumstances resulting from the Spurgeon marriage and its breakup, the trial judge specifically held that Mr. Spurgeon’s lifestyle promises did not make him responsible for Mrs. Spurgeon’s loss of the weekly payments. That loss was hers to bear.
 The trial judge did find relevant the work Mrs. Spurgeon performed for the business in 1994. He found Mrs. Spurgeon was owed more than just an hourly wage as she had assisted and enhanced the value of the company in a way that went beyond labour. On this basis, he awarded her a lump sum payment of $10,000. While the trial judge said he would listen to submissions about how the $10,000 should be characterized, namely, whether it should be compensation for the efforts devoted to the business or support, he immediately proceeded to refer to the payment as one-time lump sum support.
The Submissions on Appeal
 In concluding that Mrs. Spurgeon’s award should be limited to a $10,000 lump sum payment, the trial judge clearly attached considerable significance to the fact that the marriage only lasted one year and that the loss of support was a direct result of a decision she had made. She had entered the marriage with “full knowledge that this support would cease”.
 Against this background, Mr. McLeod, counsel for Mrs. Spurgeon argues that s. 15 of the Divorce Act and jurisprudence under that section make it clear that a spouse is entitled to support if she has suffered economic disadvantage as a result of the marriage or the breakdown, has become dependent on her partner or if the parties have agreed to support. A spouse suffers economic disadvantage if she limits her ability to be self-sufficient. Mrs. Spurgeon suffered economic disadvantage from the marriage due to the loss of her income from her former husband’s estate. Mr. McLeod further argues that Mr. Spurgeon knew this would be the effect of the marriage and indicated he would look after his wife. As a result, his client should be able to look to Mr. Spurgeon for support.
 Periodic support is appropriate because a lump sum payment is only reasonable where it is a realistic way of resolving the parties’ economic relationship. The argument is that the lump sum payment of $10,000, even if it can properly be characterized as a support payment notwithstanding the confusion in the reasons on this point, would not allow Mrs. Spurgeon to achieve economic independence.
 Mr. McLeod further argues that periodic support should continue as long as necessary until the support objectives raised by the facts have been addressed. Although a court may take into account the length of the relationship in determining the duration of support, any marriage has the potential for indefinite support. In the case of the Spurgeon marriage, the pattern of dependency created is such that Mrs. Spurgeon should receive support until age 65.
 Mr. Clayton, counsel for Mr. Spurgeon, submits that there was no reviewable error in awarding Mrs. Spurgeon a lump sum payment of $10,000. The predicament in which Mrs. Spurgeon finds herself is mainly due to decisions she made throughout her life such as to be a “stay-at-home” mother and only to make “minimal efforts at earning her own income in the interval between the breakup of her first marriage in 1987 and her marriage to Mr. Spurgeon”. Mr. Clayton says it would be inappropriate to isolate the one decision made by the parties, to get married, from the other decisions that bore on Mrs. Spurgeon’s reliance on continued support from her first husband, and place the entire burden on Mr. Spurgeon.
 Mr. Spurgeon’s position is that the trial judge was entirely correct in making the order that he did, particularly in light of the brevity of the marriage. Mr. Spurgeon should not be treated as though he were an insurer for Mrs. Spurgeon by having him bear all the economic consequences of the marriage relationship and its breakdown.
 For the standard of review I rely on the following words of Justice L’Heureux-Dub in Moge v. Moge,  3 S.C.R. 813, 43 R.F.L. (3d) 345, where she accepted the following statement of Morden J.A. in Harrington v. Harrington (1981), 33 O.R. (2d) 150 at p. 154, 22 R.F.L. (2d) 40 (C.A.):
As far as the applicable standard of appellate review is concerned I am of the view that we should not interfere with the trial Judge’s decision unless we are persuaded that his reasons disclose material error and this would include a significant misapprehension of the evidence, of course, and, to use familiar language, the trial Judge’s having “gone wrong in principle or [his] final award [being] otherwise clearly wrong”: Attwood v. Attwood,  P. 591 at p. 596. In other words, in the absence of material error, I do not think that this Court has an “independent discretion” to decide afresh the question of maintenance . . .
 Section 15 of the Divorce Act authorizes the court to order reasonable spousal support. The relevant provisions provide:
15(4) The Court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions, in connection therewith as it thinks fit and just.
(5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse . . . including:
(a) the length of time the spouses cohabited;
(b) the functions performed by the spouse during cohabitation, . . .
. . . . .
(7) An order made under this section that provides for the support of a spouse should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
. . . . .
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic
self-sufficiency of each spouse within a reasonable period of time.
[21a] L’Heureux-Dub J. said the following in Moge at pp. 848-49 S.C.R., p. 373 R.F.L.:
The second observation I wish to make is that, in determining spousal support, it is important not to lose sight of the fact that the support provisions of the Act are intended to deal with the economic consequences, for both parties, of the marriage or its breakdown. Marriage may unquestionably be a source of benefit to both parties that is not easily quantified in economic terms. . . .
. . . marriage and the family often require the sacrifice of personal priorities by both parties in the interests of shared goals. All of these elements are of undeniable importance in shaping the overall character of a marriage.
Spousal support in the context of divorce, however, is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from “marriage or its breakdown.” Whatever the respective advantages to the parties of a marriage in other areas, the focus of the enquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.
[Emphasis in original]
 Recent decisions of the Supreme Court of Canada have made it clear that absent indications to the contrary, a mutual duty of support is created by marriage. In s. 15 of the Divorce Act, Parliament has set out the objectives a support order should serve. No single objective is paramount.
 In my view, the trial judge erred by over-emphasizing the short duration of the marriage. While the length of marriage is of some relevance, the authorities have shown that even a brief marriage can give rise to lengthy and perhaps even permanent support obligations. The trial judge erred by equating a short-term marriage to one where a spouse can easily attain self-sufficiency in the short-term. While this may often be the case, it is less likely when the short-term marriage involves older partners such as the Spurgeons.
 “Hard cases” involving short marriages leaving people with little chance of becoming self-sufficient have been examined in the literature. Professor Carol Rogerson in her paper “Spousal Support After Moge,” (March 1997) 14 C.F.L.Q. (No. 3) 281 at pp. 370-72 identifies such cases as those where the spouse claiming support at the end of a short marriage had limited earning capacity for any number of reasons, one of which may be age. The author observes that what has generally developed post-Moge is a “fairly generous application of what [she] calls the non-compensatory principle (and what others would call the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage) to award support to cushion lower-income spouses against the economic isolation of marriage breakdown”.
 In deciding whether Mrs. Spurgeon has discharged the burden of being entitled to support, the focus of inquiry must be the effect of the marriage on her economic prospects. That involves, among other things, a consideration of her economic position before and after marriage. The trial judge specifically found that Mrs. Spurgeon suffered economically in the form of losing the weekly support payments. Given her age, she cannot reasonably have been expected to return productively to the work force. As a result of the marriage, Mrs. Spurgeon’s economic position has been altered in a number of ways including having to draw upon savings for living expenses.
 The trial judge also placed undue emphasis on Mrs. Spurgeon’s decision to go into the marriage knowing she would lose her entitlement to the weekly payment from her former husband’s estate. This implies that a party to the marriage must bear the consequences of decisions made that created the economic consequences suffered by that person. This approach conflicts with the following view clearly expressed by McLachlin J. in Moge [at pp. 881-82 S.C.R., pp. 399-400 R.F.L.]:
Parties sometimes argue that the economic disadvantage of their spouse was not caused by the marriage or its breakdown, or that her economic hardship was not caused by the termination of the marriage. Shades of these arguments surfaced in this case. It was said that Mrs. Moge voluntarily elected to be the primary homemaker and caregiver, that it was her choice and not the marriage that caused the resultant economic disadvantage. Similarly, it was suggested that her present need and lack of self-sufficiency was not the product of the marriage but of her failure to choose to upgrade her education so she could earn more money.
A formalistic view of causation can work injustice in the context of s. 17(7), as elsewhere. The question under s. 17(7)(a) is whether a party was disadvantaged or gained advantages from the marriage, as a matter of fact; under s. 17(7)(c), whether the marriage breakdown in fact led to economic hardship for one of the spouses. Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant, unless the parties acted unreasonably or unfairly. In this case, for example, Mrs. Moge, in keeping with the prevailing social expectation of the times, accepted primary responsibility for the home and the children and confined her extra activities to supplementing the family income rather than to getting a better education or to furthering her career. That was the actual domestic arrangement which prevailed. What Mrs. Moge might have done in a different arrangement with different social and domestic expectations is irrelevant.
Similarly, in determining whether economic hardship of a spouse arises from the breakdown of the marriage, the starting point should be a comparison of the spouse’s actual situation before and after the breakdown. If the economic hardship arose shortly after the marriage breakdown, that may be a strong indication that it is caused by the family breakdown. Arguments that an ex-spouse should be doing more for herself must be considered in light of her background and abilities, physical and psychological. It may be unreasonable to expect a middle-aged person who has devoted most of her life to domestic concerns within the marriage to compete for scarce jobs with youthful college graduates, for example.
Even women who have worked outside the home during the marriage may find that their career advancement has been permanently reduced by the effort which they devoted to home and family instead of their jobs, whether the woman be a janitor like Mrs. Moge or a well-trained professional. Sometimes the brea kdown of the marriage may have left the woman with feelings of inadequacy or depression, which make it difficult for her to do more. In short, the whole context of her conduct must be considered. It is not enough to say in the abstract that the ex-spouse should have done more or be doing more, and argue from this that it is her inaction rather than the breakup of the marriage which is the cause of her economic hardship. One must look at the actual society and personal reality of the situation in which she finds herself and judge the matter fairly from that perspective.
 Although these words applied to an application for a variation of spousal support, the guidelines in s. 17 and s. 15 of the Divorce Act are very similar. The fact that Mrs. Spurgeon could have made other choices is irrelevant to the issue of her entitlement to support. The trial judge erred in taking into consideration, in denying support, Mrs. Spurgeon’s decision to marry Mr. Spurgeon with the knowledge that she would lose her weekly support.
 Based on these two errors in principle, I have concluded the decision of the trial judge not to award periodic support to address the economic consequences to Mrs. Spurgeon in having lost the benefit of the weekly support payments constitutes a reviewable error and allows this court to decide Mrs. Spurgeon’s support entitlement afresh.
 The most appropriate award is one of periodic support. First, a periodic award is directly reflective of the economic consequence to Mrs. Spurgeon of the marriage. As well, from Mannarino v. Mannarino (1992), 43 R.F.L. (3d) 309 (Ont. C.A.) it is clear that lump sum payments are the exception unless there is a real risk that periodic payments would not be made. The flaw in a lump sum award is particularly serious when the nature of the award was not clearly identified or its amount justified by the trial judge.
 I turn to the duration of support. Each marriage creates its own pattern of dependency and the court should recognize and redress such dependency in determining the duration of support. In terms of the time period during which support should be paid, the onus is on Mrs. Spurgeon to establish her entitlement to support. She did not claim support until she issued her counter-petition for divorce on July 4, 1995. There is no evidence in the record as to why she did not advance a claim earlier. The support will therefore be payable from July 1995. Mrs. Spurgeon properly acknowledged that her circumstances would change when she turned 65 and it is reasonable that support continue until that time.
 The amount, like other incidents of support, should reflect the relevant support objectives and statutory discretion factors. Mrs. Spurgeon is entitled to support due to the economic consequences of the marriage and its breakdown and therefore the amount should reflect the extent of the economic disadvantage. Moge makes it clear that “the economic consequences have to be shared in an equitable manner by both partners” which, in the unique circumstances of this case, should be interpreted as meaning equally. Accordingly, Mr. Spurgeon should pay weekly support to Mrs. Spurgeon in the amount of $175.
 The trial judge gave no principled basis for the lump sum award of $10,000. Where Mrs. Spurgeon will now be receiving periodic support there is no justification for maintaining that award; she is not entitled to the lump sum in addition to the periodic support.
 The appeal is allowed. The judgment below is set aside to award Mrs. Spurgeon support in the amount of $175 per week from the date the counter-petition was issued to her 65th birthday in place of the lump sum payment of $10,000. All other terms will remain unchanged.
 Unless we hear submissions to the contrary within 15 days, costs should follow the event which we fix in the amount of $2,500.