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Changing Heartbreak Into a Clean Break

8 minute read
Also authored by: Zoe Rajwani

Navigating legal and financial issues that impact your life when your family dynamic changes can be challenging. Subscribe to FamilyMatters, our Lerners Family Law blog series, which provides insightful information and helps you determine your next steps. 

I heard it through the grapevine…I’m gonna pay for all those years you were “mine.”

Let’s not sugarcoat it. Breakups are often brutal, whether you left or your partner left. The emotions are complicated and intense. Having to deal with your finances being intertwined with your former spouse indefinitely can feel overwhelming.

There are ways, however, to ensure that you can change your heartbreak into a clean break. There is such a thing as closure in family law disputes if you have a focus on final solutions, keeping in mind that there may be an element of risk because not all aspects of the future will be known. No one has a crystal ball (and if I’m wrong – please send it my way!).

As a family law lawyer, and a human being who knows how difficult the end of a relationship may be, I know the legal battle that often ensues adds more layers of challenging emotions and even trauma. I try to focus on early and final resolutions wherever possible.

I would never underestimate the hurdles faced by former spouses with respect to parenting disputes. There are often long-term commitments needed for communication and child-focused co-parenting. The former spouses will always be parents, and avoiding future disputes is essential with a detailed parenting plan. As difficult as it may be, parents should be encouraged to create a new arrangement that will work for their children, even when it’s difficult for the parents themselves.

The division of property, with full financial disclosure, is often not an adversarial process, particularly for couples who were married. It’s important to encourage clients to be forthright and transparent about finances; any “cat and mouse” game will only cost the spouse hiding information in the end. Judges have no patience for non-disclosure, and court disputes will be unnecessarily protracted by playing hide-and-seek with disclosure.

How do I promote finality and a clean break? As discussed above, this is not realistically possible with children, but conflicts can and should be minimized for the sake of the children. If there are no children, and property division is resolved, but spousal support is an issue, then there are ways to achieve closure. I focus on lump-sum spousal support as an important option with benefits for both the paying spouse and the recipient of support. It is important to understand that a lump-sum payment of spousal support is easier to obtain through negotiation or mediation, or other out-of-court processes than in court. Court is bound by precedent case law, and the factors in favour and against ordering spousal support must be addressed.

How do I obtain lump-sum spousal support in Court?

A lump-sum spousal support award can provide a clean break over ongoing, monthly payments. The Court, however, has endorsed that most spousal support orders be in the form of periodic payments. To get this award in court, judges typically consider the Davis v Crawford factors.

Some examples of the advantages considered by a judge include terminating ongoing contact/ties between the spouses for a number of reasons, such as a short-term marriage, intimate partner violence, a second marriage with no children, etc. Other reasons for awarding a lump-sum payment are if a dependent spouse needs the money to meet an immediate need, if there is a serious risk of non-payment of periodic support, or if there is a lack of proper financial disclosure.[1]

One of the risks of lump-sum payments is it does not allow for variation, where periodic support payments may be varied in the event of a material change in circumstances. This means that even if the ability of one party to pay and/or the needs of a party change, the lump-sum payment award has already been paid out and cannot be retroactively changed. Other risks for a lump-sum are if there are simply no funds available for a party to make a payment or if it’s burdensome or simply too difficult.

Examples of when the Court has considered an order for lump-sum spousal payment

In Racco v Racco2014 ONCA 330, the Court of Appeal for Ontario relied on Davis v. Crawford in upholding a trial award of lump-sum spousal support. The court stated that it was granting lump-sum spousal support based on the high level of animosity between the parties, a history of non-payment, the possibility that the payor’s financial situation would continue to be precarious, the desirability of terminating personal contact, and the need to provide capital to the support recipient.

In Mathers v Crowley, 2021 ONSC 8149, the Court found a lump-sum award to be appropriate because Mathers had access to money from the proceeds of the sale of the matrimonial home, and the case was considered appropriate for a “clean break.” This is because the parties had no minor children in common and no reason to remain in contact. As well, both parties were retired and in stable economic situations, making a lump-sum award calculation straightforward. The Court also noted Crowley’s intention to be litigious going forward, and a periodic support award would leave the door unnecessarily open to constant litigation between the parties in their retirement years.

Rus v Rus, 2022 ONSC 5041, is a case where a lump-sum spousal support payment was not awarded. This was because there were too many variables that could change in the future, making calculating a lump-sum payment difficult. This included both the Applicant’s need for support and the Respondent’s future income levels possibly changing.

What makes spousal support appealing during negotiations or mediation?

Lump-sum spousal support for a payor spouse provides finality. While there is risk in terms of paying too much, such as if the payor’s income is decreased unexpectedly or if a payor retires early, that risk is likely offset by avoiding future litigation to terminate or vary spousal support. Funds need to be available to pay the lump-sum, and often the equity in the matrimonial home is the source of the funds. There will be a final separation agreement with a full and final spousal support release upon receipt of the lump-sum payment.

For the recipient spouse, there is the risk of the lump-sum payment being too low; however, that is generally offset by the benefit of receiving a tax-free payment immediately, as opposed to monthly, taxable payments made over time.

It is a challenge to negotiate the proper incomes and length of time for the calculation of lump-sum spousal support, but it’s not insurmountable. Retirement of the payor often presents a clear timeline.

For both spouses, there is the benefit of closure, moving on, and not having spousal support on their minds in the future. Spousal support is one of the most difficult issues for family law clients to understand. Clients ask - why should I have to support my spouse when I did that throughout our relationship? Child support is for the support of the children and is generally clearly understood as fair and appropriate. There is also a lot of discretion about the range and duration of spousal support in court where the law is to be strictly applied.

It is important to recognize that issues like lump-sum spousal support may be negotiated on consent in a court proceeding, with minutes of settlement that contain a full and final spousal support release.

Why should I focus on the spousal support clean break if there are many other issues in dispute with my former spouse?

Any time that you can achieve a resolution of an issue, whether in court or out of court, you will be taking steps toward resolving other issues. Some of the heat and intensity of the dispute will cool – and when cooler heads prevail, more progress will be made. Less anger and a focused understanding of the issues will have a productive influence on the outcome of the entire dispute.

At Lerners, we understand the delicate nature of domestic and family-related legal decisions and appreciate the emotional toll they can have on those involved. Our team, located in Southwestern Ontario and Toronto, will work tirelessly to protect your interests and achieve the best possible outcome to get the closure you deserve. With a successful track record that includes some of Canada's most complex family law cases, we dedicate ourselves to achieving results and helping you move forward with your life. Contact us today to see how we can help.

[1] Davis v Crawford, 2011 ONCA 294 at para 67.

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Carolyn J. Lloyd

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