• by Roxanna Cian
Originally published in the OFLM 2024-09 edition
Overview
This article discusses the obligation to pursue financial self-sufficiency following separation in the context of a spousal support claim. By examining recent Ontario court decisions, this article reviews the varied approaches courts have taken when conducting self-sufficiency analyses. Most recently, the outcome in Gillespie v. Gillespie (2024 ONCJ 124) suggests a harsher stance on self-sufficiency may be gaining traction in the Ontario courts.
Introduction
Like other principles of support, the idea of economic self-sufficiency is a concept embedded in statute. Both the Federal Divorce Act and Ontario’s Family Law Act underscore the importance of attaining financial independence following the dissolution of a relationship.
Section 15.2(6) of the Divorce Act sets out that:
An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should,
…
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Similarly, s. 33(8) of the Family Law Act reads as follows:
An order for the support of a spouse should,
…
(c) make fair provision to assist the spouse to become able to contribute to his or her own support
Further, s. 33(9)(c) of the Family Law Act, stipulates that:
In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
…
(c) the dependant’s capacity to contribute to his or her own support
The question of “self-sufficiency” frequently arises some years after support issues are determined, as in a Motion to Change or an Application for Review. These questions are often based on the belief that enough time has passed since separation to reasonably expect greater economic independence from the recipient spouse. Other times, the discussion arises at the beginning of a proceeding when a spouse maintains that full or partial self-sufficiency is impractical due to age, disability, educational capacity, or other limiting factors.
The failure to achieve self-sufficiency is one factor to be considered in determining quantum and duration of support (Leskun v. Leskun, 2006 SCC 25 at para. 27). The absence of meaningful effort towards reaching financial self-sufficiency may motivate a court to give this factor more weight than others in determining quantum and entitlement and may even result in no support being awarded (MacEachern v. MacEachern, 2020 ONSC 31). Self-sufficiency is to be assessed in light of the standard of living enjoyed during cohabitation (MacEachern v. MacEachern, 2020 ONSC 31 at para. 27 citing Fisher). Some would say this is a disadvantage of marriage.
The question of imputing income goes hand-in-hand with any inquiry of self-sufficiency. If a party has not put forward meaningful efforts to transition to financial independence following the breakdown of the economic partnership inherent to marriage, courts can declare a party intentionally under/un-employed and apply the consequences that flow from such determination.
Taking self-sufficiency seriously
With the gradual end of the COVID-19 pandemic no longer posing a barrier to employment, one may wonder if Ontario courts are increasingly taking a harsher stance on assessing the pursuit of self-sufficiency.
In Gillespie v. Gillespie (2024 ONCJ 124), the court reviewed a separation agreement entered in 2014. The agreement established that the wife would provide regular evidence of meaningful efforts to obtain gainful employment and that the parties would annually exchange financial disclosure.
The wife held an MBA from a Polish university and a post-graduate diploma in Public Relations, and previously earned approximately $60,000 a year as a business development coordinator. Two experts brought on by the husband estimated her annual earning capacity at $70,000 to $78,000 in addition to collecting rental income. The mother submitted that she could not work in recent years as she needed to be home assisting her daughter with school during the pandemic.
To determine whether income should be imputed to the wife, the court deployed the three-pronged test set out in Drygala v. Pauli (2002, 167 OAC 274):
First, the court asked whether the wife was choosing to earn less than what she is capable of, and if so, if it was voluntary and reasonable. Second, the court assessed weather there were any reasonable educational, health, or child needs that prevented her from employment. Third, the court evaluated the evidence put forward by the wife with regards to the reasonableness of her decision.
Overall, the court found that:
(1) Her education, health, and both children being in school indicated intentional unemployment;
(2) there was no indication the wife could not have worked during covid and;
(3) no evidence existed to reasonably justify the unemployment.
Justice Paulseth took harshly to the fact that in the ten years following their separation, the recipient wife did not actively pursue her own employment income, but rather solely relied on the husband’s support.
In particular, Justice Paulseth emphasized that rather than making strides to achieve self-sufficiency, the wife was using litigation “as an excuse to finding employment and saving money” (at para. 161(e)).
Justice Paulseth explained,
Anna has made very perfunctory efforts, through electronic employment opportunities, to apply for jobs. The court accepts the evidence of Andrew that these efforts perhaps amounted to no more than one hour a week (at para. 166).
Paulseth J. imputed her income at $84,000, found her entitlement to spousal support ended two years prior, and ordered a reimbursement of $58,496 to the husband for the over-payment of spousal support as per her imputed income. This decision ultimately sent a clear message to intentionally underemployed litigants.
Gillespie – the rule or the exception?
The outcome in Gillespie is a marked departure from the approach taken in Howard v. Howard (2021 ONSC 7784). There, at the time of separation, the wife had been out of the workforce for 14 years. The parties had settled an agreement for the husband to pay spousal support for five years, after which support would be subject to review.
The husband argued that the wife did not make adequate efforts to become self-sufficient nor find meaningful employment, as shown by her failure to follow his recommendations to take pharmaceutical courses or seek teaching opportunities in British Colombia.
Alternatively, the wife argued she had a strong compensatory claim and that the husband’s focus on self-sufficiency was unreasonable. She emphasized that her role during the marriage precluded her from employment despite the husband insisting that her unemployment during the marriage was a personal choice (at para. 15).
Justice McDermot accepted the wife’s evidence that the husband’s financial success as a doctor, which was double the income average for a family practitioner in Ontario, was only made possible by her undertaking of child rearing responsibilities and household duties. Justice McDermot found that her role in the marriage placed her at an indefinite disadvantage for employment.
Justice McDermot condemned the husband’s focus on self-sufficiency, citing Moge:
The objective of self-sufficiency is only one of several objectives enumerated in the section and, given the manner in which Parliament has set out those objectives, I see no indication that any one is to be given priority. Parliament, in my opinion, intended that support reflect the diverse dynamics of many unique marital relationships. (at para. 46)
Justice McDermot further explained, “Her missteps were excusable under the circumstances and cannot be seen as purposeful avoidance of career advancement or opportunities” (at para. 48).
Evidently, while Justice McDermot placed equal weight on the compensatory nature of support in Howard, the decision in Gillespie signals a tightening stance on deliberate underemployment. As courts increasingly scrutinize efforts toward financial independence, the message is clear: reliance on support without meaningful pursuit of employment may face rigorous consequences.
Picky with work? Don’t be…
In Boudreau v. Jakobsen (2021 ONCA 511), the Court of Appeal was faced with reviewing the support obligations following a 21-year common-law relationship. Here, the respondent was economically reliant on the appellant throughout the entirety of their relationship. Following their separation, the respondent relied on disability benefits, lived in shelters, and frequented food banks.
The Court alerted,
Economic self-sufficiency does not mean mere subsistence but is a relative concept tied to the achievement of a reasonable standard of living having regard to the lifestyle the couple enjoyed during their relationship and the time needed to reach the goal of self-sufficiency. (at para. 17)
However, the Court of Appeal denounced the respondent’s deliberate lack of efforts towards attaining self-sufficiency as demonstrated by his self-limiting attitudes against certain types of work he deemed “would really rip out his soul”. Instead, the Court of Appeal championed the trial judge’s decision to impute income to the respondent, emphasizing the risk of termination or reduction of support in the absence of the recipient’s meaningful efforts towards economic self-sufficiency.
When a disability impedes self-sufficiency
Although the third prong of the Drygala test allows parties to reasonably justify their unemployment, recent case law indicates there is a relatively high threshold to meet when it comes to relying on a disability to justify the lack of effort towards attaining self-sufficiency.
If a client is relying on medical circumstances to defend a claim for imputation of income, counsel should be well-prepared to provide a medical report detailing diagnoses, prognosis, treatment plan, and how the medical condition specifically affects one’s ability to work (Davidson v. Patten, 2021 ONCJ 437).
In McChesney v. McChesney (2023 ONSC 5388), the applicant wife claimed that her diagnoses of PTSD, depression, and anxiety obstructed her from attaining her desired self-sufficiency. She argued that she could not work because she was grappling with the effects of the respondent’s husband’s history of physical and psychological abuse. Justice Kurke found that without psychological or medical evidence rendering the wife unemployable, it was reasonable to impute an income parallel to full-time employment income at a minimum wage job.
Similarly, in Mohamoud v. Farah (2023 ONCJ 103), the court did not accept a three-year-old medical report diagnosing the respondent husband with carpel tunnel syndrome as enough to render him incapable of achieving financial self-sufficiency.
Furthermore, in Gillespie, as previously discussed, despite the wife’s medically substantiated ulcerated colitis, the court concluded that because it was in described by the specialist as in remission, there was no indication her diagnoses would interfere with the ability to work.
Conclusion
Overall, recent Ontario decisions regarding self-sufficiency have made a point to frown upon the use of spousal support as a lottery ticket of sorts. The outcome in Gillespie serves as a cautionary tale towards the potential consequences of not reasonably pursuing financial self-sufficiency.
The degree of self-sufficiency expected when leaving a marriage or common law relationship will heavily depend on the length of the marriage, the age of the parties, their qualification, and what burdens they bared by the very nature of the relationship. Indeed, some courts have shown significant leniency when it comes to evaluating one’s efforts towards self-sufficiency. However, it appears that for the most part, courts do not respond compassionately when faced with a support recipient’s unnecessary indulgence in a payor’s income.