Compensatory basis for spousal support – a review and analysis of post-pandemic case law

• by David Frenkel

Originally published in the OFLM 2023-7 edition


To be successful in a claim for spousal support, a lawyer is required to have a clear understanding of the various legal principles for the basis for support and also to know how to apply them.

Sometimes, it can get confusing, especially due to the many principles of compensatory support and non-compensatory support along with the evidence required to prove these claims.  Moreover, there is a difference between how courts address the issues at trial versus at a motion.  There is also a distinction between original support claims and variations.

This article does not address many of the above differences and instead narrows the focus to only the compensatory basis for support with the goal of adding clarity and an increased understanding.  



Determining the compensatory basis for spousal support is a fundamental step of the modern support calculation process – even Covid-19 was not able to shake that tradition.

Courts have continued to first determine whether there are any compensatory factors in the relationship in question, and if so, to what extent. Only then are non-compensatory factors considered (i.e. needs and means) followed by the DivorceMate SSAG calculations.

But compensatory factors have been discussed ad nauseum for over 30 years since Moge v. Moge and if so, is there anything legally new under the sun, as King Solomon would have asked if he was a family lawyer?

This article attempts to answer that question by reviewing how cases in 2022 and 2023 continue to approach compensatory support on the whole.

In short, courts throughout Canada seem to follow a consistent and predictable path before performing SSAG calculations. That path, at least vis-à-vis compensatory support and with a few exceptions, is as follows:

  1. Review the applicable sections in the Divorce Act;
  2. Review various sections in Moge and Bracklow;
  3. Mention applicable paragraphs in a number of often cited cases including, Miglin v. Miglin, Thompson v. Thompson, Chutter v. Chutter, Cassidy v. McNeil, and Zacharias v. Zacharias, to name a few; and,
  4. Refer to the Spousal Support Advisory Guidelines Revised User’s Guide (RUG) that lists compensatory factors to consider.

The following is a deeper dive into the cases themselves.


Recent cases addressing compensatory support

Although the focus of this article is mainly cases in 2022, there were a few cases in 2023 that were interesting to summarize, namely, Mullin v. Sherlock (2023 ONSC 3744) and R.L. v. M.F. (2023 ONSC 2885).

Mullin v. Sherlock

In Mullin v. Sherlock (2023 ONSC 3744), the parties cohabited from the year 2000 until 2012, got married in September 2012 and finally separated in June 2013. They had no children.

The wife claimed support on both compensatory and non-compensatory basis.

Along with the major issue of unjust enrichment, Mullin provided a nice reminder to refer back to the SSAGs for the basis of compensatory support arguments.

With respect to compensatory factors vis-à-vis entitlement, Justice Bloom referred to pages 5-6 of the SSAGs: The Revised User’s Guide (RUG) of April 2016:

(a) The principles of entitlement

• Compensatory claims are based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation.

Common markers of compensatory claims include: being home with children full-time or part-time, being a “secondary earner”, having primary care of children after separation, moving for the payor’s career, supporting the payor’s education or training; and working primarily in a family business. Some lawyers and judges erroneously think that any long marriage gives rise to compensatory support, but the Ontario Court of Appeal decision in Fisher, above, makes clear that this is incorrect. Compensatory support is to be distinguished from non-compensatory support …, which is based upon economic interdependency and loss of the marital standard of living.

(Mullin v. Sherlock, 2023 ONSC 3744 at para. 61)

To support the finding of compensatory support, Justice Bloom indicated that the wife was paid for work at the husband’s business while also giving up her career in architecture to assist in the parties’ joint family venture.

However, the court outlined the fuller basis for compensatory support in the other part of the decision that established the basis for the wife’s joint family venture claim. The relevant paragraphs are summarized as follows:

123      I find that the Applicant conferred on the Respondent a benefit. She worked constantly in the GS Medical business commencing in January of 2001 until the end of 2012. In 2012 she still did special projects for the business. She agreed with the Respondent to a salary reduction so that the business could hire more employees. From September 9, 2011 until December of 2011 she worked full time and received no salary.

124      Additionally, the Applicant ran the household of the parties so that the Respondent could devote himself to the business. She cooked; was responsible for the maintenance of their home; took care of their dogs; planned their many sailing-related trips; and prepared their sailboats for competition.

125      The Applicant suffered a deprivation corresponding to the benefit conferred on the Respondent. She gave up her architectural career once she commenced working full time at GS Medical. She provided underpaid and unpaid labour to GS Medical; and performed unpaid domestic services for the parties.

126      There was no juristic reason for the benefit conferred on the Respondent and the deprivation suffered by the Applicant.

127      Moreover, I find that the unjust enrichment of the Respondent by the Applicant took place in the context of a joint family venture. The parties acted in accordance with their agreement that they would dedicate their efforts to building the GS Medical business, which would finance their retirement by its sale or operation. The Applicant sacrificed her career in architecture and dedicated approximately a decade to realizing the goals she and the Respondent shared. (Mullin v. Sherlock, 2023 ONSC 3744 at paras. 123-127)

Mullin v. Sherlock also provided an example of a case where the basis for one legal issue, i.e., compensatory support, overlap with the basis for another issue, i.e. a joint family venture.

Ultimately, Justice Bloom ordered 10 years of support to be paid in a lump sum amount of $365,624, net of tax.


R.L. v. M.F.

In R.L. v. M.F. (2023 ONSC 2885), Justice Kurz dove into the spousal support universe and provided a very good summary of the basis for support, entitlement and compensatory factors.

Justice Kurz started with Bracklow, continued with Thompson v. Thompson and Shaw v. Shaw, and also sprinkled in Caratun v. Caratun (ONCA) and Spurgeon v. Spurgeon (Ont. Div. Ct.).

To top of the legal foundation, Kurz J. then quoted Professor Thompson’s 2020 CFLQ article that listed examples of circumstances (“practical markers”) that lead to an award of compensatory support:

-spouse stays home full-time or part-time to care for children

-secondary earner who takes a less demanding job to assume greater responsibility for childcare

-spouse relocates to further career or employment of the other spouse

-spouse earns income to support the other spouse who is completing education, training or other qualifications to improve income

-spouse primarily responsible for childcare after separation

-spouse works in family business, acquiring skills specific to the business and no broader credentials for employment elsewhere. (R.L. v. M.F. 2023 ONSC 2885 at para. 262)

For a thorough application of the law to the facts of that case, please refer to paragraphs 264 - 271.



When reviewing solely the 2022 cases on spousal support in Canada, it was interesting to see how compensatory spousal support cases stayed consistent over the years and how Canadian cases repeatedly view the compensatory factors on the whole.

From the 2022 case law review, there emerged a number of basic principles about entitlement in general that have continued to be repeated:

-When dealing with entitlement to compensatory and non-compensatory spousal support, the starting point is the Divorce Act, s. 15.2(4) (C.K. v. S.F., 2022 NLSC 117 at para. 136).  Alternatively, provincial legislation comes into play when the Divorce Act does not have jurisdiction.

-The leading authorities regarding spousal support are still Moge v. Moge, Bracklow v. Bracklow and Miglin v. Miglin (C.K. v. S.F., 2022 NLSC 117 at para. 136).

-Entitlement for spousal support in Moge is based on compensatory ground and Bracklow stands for the principle that “need alone may not be enough”  (N. v. D., 2022 ABKB 860 at para. 115).

-Entitlement may exist as a result of one, or a combination, of the three grounds for entitlement, namely, compensatory, non-compensatory, and contractual (Hooge v. Hooge, 2022 ABKB 824 at para. 107). 

-Compensatory spousal support should be awarded to address the economic disadvantage that a spouse suffers as a result of the role they adopted in the marriage. (C.K. v. S.F., 2022 NLSC 117 at para. 138)

-It is only after the claimant proves entitlement that the issues of quantum and duration of spousal support arise (Babijowski v. Wolanicki, 2022 BCSC 2126 at para. 93).

The following are a number of cases that add more useful principles and concepts to the compensatory support analysis.  

In Goldman v. Goldman, Justice Price reviewed the Divorce Act and outlined how it relates to the two types of support. Specifically, the spousal support objectives set out in s. 15.2(6) (a) and (b) of the Divorce Act primarily relate to compensatory support, while those set out in s.15.2(6) (c) and (d) primarily relate to non-compensatory support.

Justice Price referred to the often-cited decision of Thompson v. Thompson where Justice Chappel summarized the factors and objectives of spousal support as set out in the Divorce Act and where she also reviewed the models on which an entitlement to spousal support has been held to exist. (Goldman v. Goldman, 2022 ONSC 4585 at paras. 60, 61 & 77)

Justice Chozik in Jasiobedzki v. Jasiobedzka reminded us that it is critical for the court to determine all grounds for entitlement because the basis for entitlement may significantly impact quantum and duration of spousal support (Jasiobedzki v. Jasiobedzka, 2022 ONSC 1854 at para. 30).

Justice Caldwell in Cartmell v. Cartmell emphasized the requirement to consider all the factors when determining entitlement by referring to the 2015 Court of Appeal decision of Zacharias v. Zacharias. Justice Caldwell wrote as follows:

The Court of Appeal in Zacharias v. Zacharias, 2015 BCCA 376 (B.C. C.A.) also made clear that where there is an entitlement to compensatory support, " . . . courts have not demanded a meticulous accounting of the detriment suffered by one spouse or the benefit received by the other" (at para. 51). Where the marriage was a long one, the marital standard of living is often a reasonable measure of appropriate compensation, but it will not always be determinative; all of the factors set out in s. 17(7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) must be considered: paras. 51 — 55.  (Cartmell v. Cartmell, 2022 BCSC 314 at para. 13)

With respect to the interplay between compensatory and non-compensatory factors, Justice MacDonald in D.Z. v. M.Z. narrowed the issue and wrote that many support claims involve aspects of both compensatory and non-compensatory principles. Also, a court does not need to decide on one basis for support to the exclusion of the other.

Rather, (quoting Bracklow), a court is to apply the relevant factors and strike the balance that best achieves justice in the particular case and to keep in mind the overarching principle of “the doctrine of equitable sharing of the economic consequences of the marriage.”  (D.Z. v. M.Z., 2022 BCSC 706 at paras. 93 – 94)

In Cartmell v. Cartmell, Caldwell J. also held that where spousal support is ordered on a combination of compensatory and non-compensatory grounds, entitlement continues as long as either ground remains applicable. Justice Caldwell referred to the 2019 decision of M.H.W. v. D.K.W. to support his finding:

When a spousal support order is made on the basis of both compensatory and non-compensatory considerations, it is an error to treat the two bases for entitlement “as if they were separate heads of damages”…

. . . It must be recognized, however, that while there may be more than one basis for a spouse's entitlement to support, the award is a single and indivisible one. It is not, as the chambers judge implied, made up of a "compensatory" component and a separate "non-compensatory" component. Rather, the whole of the award is available to address both compensatory and non-compensatory goals.  (Cartmell v. Cartmell, 2022 BCSC 314 at paras. 9 – 11)


A focus on the compensatory basis of support

With the above general overview in mind, now we can continue narrowing our focus to the compensatory basis of support and how cases in 2022 viewed the concept.

Chutter v. Chutter still remains an often-quoted case and was again referred to in MFSJ862 v. FFSJ862 when defining compensatory support.  

…compensatory support provides redress for economic disadvantage arising from the marriage (such as diminished earning capacity and sacrificed career opportunities to take on child care responsibilities) or the conferral of an economic advantage upon the other spouse (such as contributions to enhanced career development). (MFSJ862 v. FFSJ862, 2022 BCSC 1259 at para. 208 referring to Justice Rowles in Chutter v. Chutter)

In B.K.W. v. S.J.H, Justice Morellato referred to the heavily cited 2015 British Columbia court of appeal decision of Zacharias v. Zacharias:

Compensatory entitlement will arise where, as a result of the parties' roles during the marriage, one spouse has suffered economic disadvantage or has conferred economic advantages on the other. … Upon the dissolution of the marriage, the spouse who has given up opportunities may be entitled to spousal support, either to compensate for diminished earning capacity, or to share in the augmented earning capacity of the other spouse. The main goal of compensatory spousal support is to provide for an equitable sharing of the economic consequences of the marriage (see Moge v. Moge, [1992] 3 S.C.R. 813 at 858-66).  (B.K.W. v. S.J.H., 2022 BCSC 1445 at para. 45)

In addition to the traditional list of compensatory factors as listed above, courts continue to look for nuanced details of the relationship with respect to the compensatory assessment. This step is in line with the reality that relationships are unique and evolving. It should come as no surprise then that the basis of compensatory support also needs to be examined anew beyond the stereotypical “spouse stays at home to take care of the children” factors.

For example, in Hooge v. Hooge, Rothwell J. found that notwithstanding that the wife earned her PhD during the marriage and was largely supported by the husband, she established an entitlement to compensatory support due to being economically disadvantaged by the marriage. The reasons for this finding were that

-the wife was largely responsible for childcare from 2008 to 2015 while she was pursuing graduate studies and she likely would have completed her studies more quickly if she was not responsible for childcare during this period;

-the husband was gone from home working for extended periods of time during the 2008 to 2015 period and was able to focus on his career;

-the wife at times was the equivalent to a single parent when the husband was away for work; and

-the wife’s entry into the paid workforce was delayed as a result of her childcare obligations.

In Hooge, the court distinguished the wife’s disadvantage from a traditional stay-at-home parent who was absent from the workforce and re-enters with the same skill set as they possessed at the time the first child was born or perhaps with dated skills. (Hooge v. Hooge, 2022 ABKB 824 at paras. 108 – 101)

Similarly, in A. v. A., the court described the wife having to face many barriers in finding decent employment due to her unique intersectional experience as a racialized, immigrant woman and the nature of her relationship with the husband. When the wife arrived in Canada, she learned that her degrees and designations would not be recognized and her previous work in the entertainment industry in India did not translate into regular, paid work in Canada. While she was accredited as a Hindi interpreter and worked in that capacity for a year or two in Brampton, there was less demand for such services in Edmonton. At the time of trial, the wife was 53 years old and was finishing the accreditation process for immigration consultancy.

In A. v. A., Justice Mandhane found a strong compensatory claim based on the division of labour, barriers in finding employment and post-separation obligations with respect to the children. (A. v. A., 2022 ONSC 1303 at paras. 155-157.)  

In addition to assessing the compensatory factors on their own, there is also a further component of the analysis which entails comparing and contrasting the interplay between the factors themselves. For example, in Davidson v. Jamieson, Justice Engelking found that the wife was entitled to compensatory support and described the interplay between Ms. Jamieson’s sacrifice and Mr. Davidson’s benefit as follows:

Mr. Davidson had already started his business at the time of the marriage. Although Ms. Jamieson had commenced university at Trent in Peterborough, she did not finish before giving birth to Adelaide. After Adelaide was born Ms. Jamieson stayed home to care for the children. Mr. Davidson was able to focus on building his business during those years. Ms. Davidson also testified that she did some bookkeeping for the business and volunteered at events in the community to get the name of Top Notch Heating out there. She, thus, helped Mr. Davidson promote the business.  (Davidson v. Jamieson, 2022 ONSC 1736 at para. 32)

As a final example a compensatory focused case, Osborne v. Shevalier dealt with a spouse that assisted the other spouse in their business. Justice Sproat, quoted Justice Chappel in the 2013 decision of Thompson v. Thompson that provided a helpful list of contributions to a party’s career:

… a compensatory claim can also be founded on other forms of contribution to the other party's career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party's income.  (Osborne v. Shevalier, 2022 ONSC 73 at para. 69)

In Osborne, the court found that the wife did not have any right to support on a compensatory basis as the husband was a qualified electrician when they met, and she did not make any sacrifices and contributions that conferred a benefit to her husband.


Not taking entitlement for granted

In the review of the 2022 and 2023 cases, it was helpful to see examples of how courts dismissed claims for compensatory support.

These decisions included the reasoning for the dismissed claims and also highlighted what evidence was missing.

The following are the trial decisions where courts have found weak or no compensatory entitlement along with the specific reasonings in each:

-Babijowski v. Wolanicki, 2022 BCSC 2126 at paras. 94 – 101 (Justice Weatherill)

o both parties carried on working in their respective careers, the wife as a housekeeper and the husband as a heavy-duty mechanic;

o there was a lack of evidence regarding the economic contributions of each spouse to the relationship;

o there was no evidence that the wife made sacrifices that lowered her earning potential or reduced her future financial prospects;

o there was also no evidence that the husband enjoyed economic advantages as a result of the wife’s efforts during the relationship;

o the wife presented very limited evidence about whether she was economically disadvantaged during the parties' relationship;

o there was no evidence that the wife delayed her career because of the relationship or of what went on at the home during their relationship;

-Nagy v. Csuka, 2022 BCSC 565 at paras. 108 - 112 (Taylor J.)

o the evidence did not support the conclusion that either party incurred lasting economic disadvantages from making sacrifices that conferred economic advantages upon the other spouse;

o the breakdown of the marriage did not materially impair Ms. Csuka's employment prospects, as she continued to work full-time in the same job up until 2015, when she experienced the health issues;

-Kumar v. Nand, 2022 BCSC 1145 at paras. 94 – 107 (Giaschi J.)

o the evidence did not support the respondent’s claim that she was entitled to support because she advanced the claimant's career to the detriment of her own career;

o the claimant was employed with BC Liquor at the commencement of the relationship and remains employed with BC Liquor to this day;

o the claimant’s employment and position with BC Liquor had nothing to do with anything the respondent did or with any sacrifice made by the respondent during the marriage;

o the claimant received a few promotions during the marriage, however, these were unconnected with anything the respondent did or with any sacrifices she made;

-S.A.T. v. D.A.T., 2022 BCSC 1176 at paras. 254 - 264 (Morellato J.)

o the parties did not have a traditional marriage where Ms. T stayed home with the children and sacrificed career opportunities;

o Ms. T's career aspirations or income earning potential were not compromised by her roles and responsibilities while married to Mr. T;

o Ms. T grew her nanny business during the marriage;

-Cui v. Liwanpo, 2022 ONSC 4549 at paras. 153 – 164 (Heeney J.)

o far from causing an economic disadvantage, the wife’s marriage to the respondent proved to be an economic windfall;

o the evidence did not support the wife’s claim that she made a significant contribution to the respondent's medical practice;

o the respondent was 58 years of age at the time of the marriage, and had been practicing medicine for decades and had established a mature and profitable medical practice, which did not undergo any substantial changes throughout the marriage;

-Goldman v. Goldman, 2022 ONSC 4585 at paras. 78 - 166 (Price J.)

o no evidence was provided to show that any failure on the wife’s part to have achieve self-sufficiency resulted from her career pursuits or job dislocation for the family;

o "any minimal disadvantage" suffered by Ms. Weiss Goldman — or the advantage gained by Dr. Goldman from the economic assistance Ms. Weiss Goldman rendered at the beginning of the parties' marriage — "cannot be compared to that of a long-term traditional spouse who made career sacrifices to the significant advantage of the other spouse."

-Dosu v. Dosu, 2022 ONSC 5053 at paras. 49, 61 - 66 (Lococo J.)

o to the extent that the husband relied on the prospective disparity relating to the parties' opportunity to earn employment income and accumulate pension entitlement, that disparity was the result of his age and retirement status, rather than being related to the marriage or its breakdown;

-C.C. v. S.P.R., 2022 BCSC 1817 at paras. 93 - 106 (Gibb-Carsley J.)

o the respondent benefitted economically from his marriage to the claimant, rather than the marriage being a financial detriment to him;

o there was no evidence to support the view that the respondent contributed in a sufficiently significant way to justify an award of spousal support on the basis that his contribution to the marriage endeavour was to his economic detriment;

-C.Y.J. v. R.J., 2022 BCSC 1901 at paras. 74, 77 - 79 (Taylor J.)

o the parties gave the other substantial freedom to pursue their own career and financial interests;

o the wife chose not to pursue a career because this was not of interest to her either during the marriage or since the Separation Date;

-S.E.H. v. S.D.H., 2022 BCSC 1937 at paras. 130 – 151 (Giaschi J.)

o the claimant here never left the workforce – she merely took maternity leaves;

o maternity leave alone does not give rise to an entitlement to spousal support;

o the claimant received remuneration during her maternity leaves, including a top-up;

o there was nothing to suggest that her career or earning potential suffered as a consequence of her taking maternity leave;

-Sea v. He, 2022 BCSC 2169 at paras. 320 - 343 (Adair J.)

o Ms. He did not sacrifice a lucrative career, or career prospects, in China to come to Canada with Mr. Sea;

o Ms. He made personal choices about how she wished to spend her time after the child started school;

o Her absence from the paid workforce was not a financial consequence arising from care of the child, whose needs (once he began school) did not require either that Ms. He remain unemployed or meant that she was unable to upgrade her skills to improve her employability;

o Ms. He's actual earning capacity was largely untested;

-Fawbert v. Fawbert, 2022 BCSC 123 at paras. 13, 15 & 16 (Baird J.)

o both parties worked consistently throughout the marriage years, with the exception of the two discrete periods when the claimant was away from work or on reduced hours before and after giving birth to their sons, and they divided child-rearing duties more or less equally;

o the wife has not been much economically disadvantaged by her role in the marriage or materially prejudiced in the pursuit of her chosen career;

-R.J.L. v. T.G.S., 2023 BCSC 3 at para. 176 (Norell J.)

o there was no evidence that as a result of the relationship or the breakdown of the relationship, the respondent incurred an economic disadvantage or conversely that he conferred upon the claimant an economic advantage;

o the parties’ earning capacities were not significantly different;

-Alexander v. Genseberger, 2023 ONSC 904 at para. 149 (Kraft J.)

o the husband had not put forward any evidence on the record about the roles played during the parties' marriage or the economic disadvantages he suffered as a result of the marriage or its breakdown;

o there were no common markers of a compensatory claim in the facts of the case, such as the husband being home with the child full or part time; the husband being a secondary earner; or the husband moving for the wife's career;

-D.B. v. I.B., 2023 ONSC 1053 at para. 77 (Jarvis J.)

o there was no evidence that the mother contributed to the father's career or that the father received career or economic benefits as a result of contributions or sacrifices made by her;

o excepting her parental leave after the child was born, the mother was always employed;

-S. v. S., 2023 ONSC 882 at para. 74 (Pinto J.)

o the respondent did not sacrifice his career to advance the applicant's, nor was his contribution to the parties' child related and domestic responsibilities greater than that of the applicant;

o the respondent unilaterally decided to stop working to focus on those areas that he took a great interest in - the children's academic success and the family's finances;

-Carinha v. Carinha, 2023 BCSC 359 at para. 25 (Thomas J.)

o there was a paucity of evidence relevant to the factors upon which the claimant's entitlement to compensatory support can be assessed;

o the court did not have a sufficient factual matrix to assess the strength of the claim for compensatory spousal support in order to conduct a fair review of an appropriate quantum;

o the court adjourned the review of the quantum of spousal support generally and directed the parties to set a new application;

-R.L.D. v. J.R.J.M., 2023 BCSC 299 at paras. 62, 90-92 (Gibb-Carsley J.)

o the respondent was not required to compensate the claimant for sacrifices she made during the marriage;

o the claimant's benefit from the home’s equity, in combination with her receiving spousal support for the past five and a half years, has adequately compensated her for any economic disadvantage arising from the marriage or its breakdown;

-JS v. JD, 2023 ABKB 155 at paras. 114-115 (Bercov J.)

o there was never any agreement between the parties that the wife would stay home to look after the children;

o the husband encouraged the wife to return to work;

o while the parties did move around during the marriage, the reasons were not to further the husband’s career;

o during the marriage, the husband and his mother were actively involved in looking after the children when the wife was focused on looking after a child from a previous relationship

-Wintrup v. Adams, 2023 NSCA 19 at para. 44 (NSCA)

o the wife was not dependent on the husband during their relationship and marriage and had remained self-sufficient subsequent to separation;

o the wife remained capable of being employed in her field and had not demonstrated any economic (or otherwise) disadvantage as a result of the breakdown of her relationship and marriage;

-Hill v. Kelly, 2023 BCSC 630 at para. 110 (Walkem J.)

o the claimant was on long-term disability when the parties met and remained so during the course of their marriage;

o she does not appear to have given up opportunities or suffered further economic disadvantage as a result of the relationship;

-Summers v. Hearn, 2023 NLSC 63 at para. 220 (Coady J.)

o the evidence did not prove that Ms. Summers passed up career opportunities or failed to advance in her career due to the role she took in her relationship with Mr. Hearn;

o she did not prove that she made sacrifices which attract a compensatory spousal support award;

o responsibilities relative to Ms. Summers' children were hers alone and they existed independent of Mr. Hearn;

o the parties did not merge their finances until well into their relationship and then only partially when Ms. Summers was added to Mr. Hearn's bank account and later his Visa;

o any financial dependency of Ms. Summers on Mr. Hearn did not arise from the role she took in her relationship with him;

-D.J. v. K.J., 2023 PESC 17 at paras. 33 (Cann J.)

o the mother did not put forward evidence capable of establishing lost opportunity, arising from the marriage, to attain a higher income than the one she has already;

o no basis for comparison to what she could have earned, absent her departure from the work force, has been offered;

o the departure from work was comparatively short lived, rendering an inference of lost opportunity problematic, especially when combined with the family's relocation from Ontario to Prince Edward Island;

-F. v. F., 2023 ONSC 2682 at para. 177 (Kraft J.)

o the husband sought spousal support from the wife, but when asked by the Court, the husband could not identify the basis of his spousal support entitlement;

-Arcand v. Arcand, 2023 BCSC 747 at paras. 113 - 116 (Lamb J.)

o the court was not satisfied on the evidence that the wife’s career was adversely affected by her family responsibilities;

o both parties actively participated in child-rearing, although in different ways and with different strengths;

o even if Ms. Arcand was the "primary caregiver" for the children, which the court was not satisfied had been proven, her family responsibilities did not impede her economic opportunities in the long term;

o both parties worked at home, and Mr. Arcand actively encouraged and financially supported Ms. Arcand's career;

o Ms. Arcand had not established that assuming childcare and household responsibilities resulted "in a lower earning potential and fewer future prospects of financial success";

o Ms. Arcand benefitted from the economic advantage afforded by the parties' marriage by taking the opportunity to establish three businesses;

-L. v. G., 2023 ONSC 2767 at paras. 50 - 51 (Tranquilli J.)

o there was little evidence during the trial that demonstrated the parties lived together as a family, economic unit or in a joint venture before separation;

o the evidence demonstrates the parties were no more than roommates throughout their 11-year relationship;

-Mirzayeva v. Campbell, 2023 BCSC 848 at para. 247 (Weatherill J.)

o the evidence did not show the wife was economically disadvantaged by the relationship in any way’

o if anything, it discloses that the relationship resulted in significant economic advantage to her;

o the claimant had not provided evidence of particular need or hardship;

-Huang v. Balchen, 2023 BCSC 850 at paras. 119, 124 (Betton J.)

o there was no evidence that the claimant gave up any pursuit of a career as a result of the marriage; in fact, she obtained her real estate license and pursued that as she chose to;

o the wife was also able to pursue her financial and property investment objectives;

o the respondent had his business but despite differing descriptions of their roles in and the nature of the relationship, the court did not find that the claimant's activities in the relationship enhanced the respondent's pursuit of his income-earning capacity;

-Baswick v. Kahn, 2023 ONSC 3120 at para. 113 (Sharma J.)

o underlying this division of work was a desire by both parties to work full-time;

o there were likely periods when the wife assumed more responsibility (during her maternity leave), and there were likely periods when the husband assumed more responsibility (during periods of unemployment);

o however, the court could not conclude that the functions performed by the husband during cohabitation entitled him to compensatory support given the relatively equal functions performed by the wife;

o the court could not conclude that the husband’s decision to work as an in-house copywriter rather than with an agency was made as a sacrifice for his family or driven by a need to be more available to care for his children;

o this may have been a consequence, but the court did not find it to be a cause for this change in his work;

o given the shared parenting arrangement, the children's enrolment in after-school care, and the childcare supports available from the husband’s family, the court did not find that his childcare responsibilities had prevented him from working for an agency at a higher salary if such work became available to him;

-Meffe v. Meffe, 2023 ONSC 3195 at paras. 236, 241– 242 (Sharma J.)

o the respondent did not adduce evidence to suggest that he suffered economically as a result of the marriage;

o his own evidence was that in the parties' 35-year relationship, he earned double or triple the income of the applicant in 30 of those years;

o both he and the applicant worked full-time;

o none of the husband’s evidence suggested that he made sacrifices as a result of the marriage that set his career back, or that he was otherwise financially disadvantaged as a result of the role he performed during the marriage;

o the husband acknowledged in cross-examination that both spouses performed household chores, although his were focused on home renovations;

o there was no evidence to support entitlement to compensatory support;



Overall, the post-pandemic cases throughout Canada that addressed issues of compensatory support were consistent in their approach and their analysis of the legal principles.

The legal principles and the approach of their application have been summarized in this article and a number of cases highlighted and discussed.

Additionally, the article provides a comprehensive list of the trial decisions in Canada in 2022 and 2023 to date that dismissed claims of compensatory support along with their specific reasonings.

This article has focused solely on the compensatory factors of support for a reason.  And that was to deepen an understanding of their historic basis and also to better appreciate how courts have applied them in the recent past and continue to do so today.