Spousal Support Advisory Guidelines: The Revised User's Guide

17 Second Families, or Subsequent Children (SSAG 14.8)

A payor will often argue that a second or new family means that a downward adjustment should be made to spousal support. Whether any adjustment is warranted and, if so, in what circumstances, remains an unsettled issue in spousal support law. Given the state of the law, it is not surprising that no formulaic solution can be found in the Advisory Guidelines. We still have to wait for the law to develop further.

In the child support setting, issues of subsequent children are dealt with by way of undue hardship, a demanding and discretionary test found in s. 10 of the Child Support Guidelines, with no clear policy to resolve the conflict. The conflict becomes even more acute where the trade-off is between spousal support for a prior spouse and subsequent children. The policy of “first-family-first” remains powerful in the case law and is still the most common approach to the trade-off between families. The payor’s obligations to the children and spouse of the first marriage or relationship are seen to take priority over any subsequent obligations, but this is not an absolute principle

The most extensive appellate level discussion can be found in the Ontario Court of Appeal in Fisher v. Fisher, 2008 ONCA 11. On the facts Justice Lang adopted a “first-family-first” approach, but emphasized that these obligations “must be considered in context”. In Fisher, it was a bad context for the husband, perhaps the weakest possible second family claim imaginable: a speedy post-separation repartnering; two step-children rather than biological children; child support received from the father of those two children; a new wife who could requalify as a physiotherapist, but preferred to stay at home; and a large enough income that husband’s support obligation to his first wife would not impoverish his second family.

However, two interesting broader points were made by Justice Lang in Fisher: (i) despite the “first-family-first” principle, “inevitably new obligations to a second family may decrease a payor’s ability to pay support for a first family” (para 39); and (ii) where spouses separate, the payor remarries and produces another child, the context will be different and “the obligations to the second child will affect support for the first family because the payor has an equal obligation to both children” (para 40).

Two subsequent appellate level decisions, B.V. v. P.V., 2012 ONCA 262 and Shukalkin v. Shukalkin, 2012 ABCA 274 have endorsed the “first-family-first” approach and upheld lower court decisions refusing to reduce spousal support because of new family obligations. As in Fisher, these were weak cases on the facts: both involved strong compensatory claims, payors with adequate means, and no evidence of a significant impact on the payor’s ability to support a new child. Many trial level decisions have also applied the “first-family-first” approach: see Johal v. Johal, 2014 ONSC 6; Fiddler v. Fiddler, 2014 ONSC 4068; Bhandal v. Bhandal, 2015 ONSC 1152; Cotton v. Cotton, 2015 ONSC 2703; Kershaw v. Kershaw, 2015 BCSC 925; and Heath v. Heath, 2012 SKQB 436.

At the trial level, Kontogiannis v. Langridge, 2009 BCSC 1545 offers one of the rare examples of a case where the broader considerations in Fisher came into play and where spousal support was reduced because of obligations to a new child (11-year common-law relationship, no compensatory claim, husband no longer required to support wife’s 20-year-old child, husband repartnered, newborn child, spousal support reduced to $600/mo, below low end of range $1,034/mo, due to subsequent child). The Advisory Guidelines can assist in assessing the amount of any downward departure in a “subsequent child” case, by adjusting the range for a notional amount of child support in the same fashion as one does for a “prior” child support obligation. In Kontogiannis, this would have reduced the low end of the range to about $770 per month, suggesting that the court may have intuitively “over-adjusted” for the subsequent child.

Although not warranting an explicit “reduction” in spousal support, second family obligations may be a factor in choosing location in the range, leading to an award at the lower end of the range: see Gray v. Gray, 2014 ONCA 659 (low end of range due to husband’s second family and extension of duration beyond SSAG durational range on grounds of disability and inadequate compensation); and Fiddler v. Fiddler, 2014 ONSC 4068 (“first-family-first” but low end of range on interim). Second family obligations may also be a factor in determining duration and eventual termination of support: see Beauchamp v. Beauchamp, 2012 ONSC 344 (husband remarried and 5 new children, one factor justifying termination 29 years after 14-year marriage).

It should be kept in mind that the repartnering of the payor may in some cases entail a financial benefit because of the sharing of expenses and this may result in an increase in spousal support; see Flieger v. Adams, 2012 NBCA 39 (early retirement, Boston exception, also need to take into account economic impact of husband’s new partner and sharing of expenses); and Bell v. Bell, 2013 BCSC 271 (court refuses to include income of husband’s new spouse as part of his income, but does take into new spouse’s income as contribution to joint household expenses and awards support well above SSAG range). Both cases involved long traditional marriages and older spouses, where the payor husband’s income had been reduced by retirement or ill health.