Law Times

Page 14 April 9, 2018 • lAw Times www.lawtimesnews.com Judge rules that spousal support isn't forever BY DALE SMITH For Law Times A recent Ontario Supe- rior Court decision has made it clear that spousal support isn't forever, especially if there has been no effort by the party re- ceiving the support to achieve self-sufficiency. Lawyers say this supports an expectation by the courts that clients receiving support should be able to show they are trying to financially support them- selves on their own. In Choquette v. Choquette 2018 ONSC 1435, Justice Ken- neth Hood declared that Kevin Choquette could cease paying $4,750 in monthly spousal sup- port to his former wife, Yvonne Choquette, after 22 years. This was after he had been terminated in November 2016 as part of corporate restructur- ing, at which point he decided to retire, having accumulated a net worth of $14 million. In response to his request to terminate support, his former wife had requested that sup- port be increased to $15,000 per month effective January 2013. Ken Nathens, partner with Nathens Siegel LLP in Toronto, who represented Yvonne Cho- quette in the matter, says the decision is important because a judge terminated a long-term support obligation. "There's always speculation that judges may do it, but few judges actually go ahead and make the order cutting it off in a situation such as this, where there's such an income discrep- ancy," says Nathens. "It's a signal that spousal support may not be forever." In his reasons, Hood stated that because he found that Yvonne Choquette had not made an effort at achieving self- sufficiency over the 22 years that support was being paid and because the Divorce Act pro- motes self-sufficiency within a reasonable period of time, he saw no other way to promote self-sufficiency than to termi- nate her support. "I am mindful that this order may create economic hardship for Mrs. Choquette, because she does not appear to be self-sufficient at present," wrote Hood in his deci- sion. "However, the question I must address in this case is whether she remains entitled to spousal support from her former spouse. In my view, having regard to the provisions of the Divorce Act, it is clear that she is not." Nathens says there is always an issue with the spousal sup- port guidelines as to whether the courts will use the length of time and the possible termina- tion dates. "There is a question if the payer is paying under the guide- line amount whether the court will nonethleless put a termina- tion date on it," says Nathens, noting that, in this case, because of Kevin Choquette's income, he was paying far less than the spousal support guidelines would provide. Nathens says the decision re- inforces that support isn't forev- er and that, in appropriate cases, the courts will cut it off. He notes that, in this particu- lar case, the obligation is for the recipient to work. "In the past, there has always been lip service: 'You should work or we're going to impute an income to her if she doesn't work' or, in a certain period of time, he or she should be self- sufficient," says Nathens. "In this case, the judge actu- ally took action and terminated [support] for [the recipient] not making what the judge felt to be appropriate efforts." Nathens says the ruling un- derlines the importance of self- sufficiency and that where this judge differed from other judges is that he made difficult calls with respect to the facts in this case. The added complication is that Yvonne Choquette is in her 60s at this point. "It will create huge difficul- ties," says Nathens. "She has minimal employ- ment income, and she has some liquid assets, but this will call into question the terms of her retirement." Nathens says part of what makes the judgment interest- ing is knowing that she is in her 60s and approaching retirement and what the expectation is for her to work now, regardless of whether she made efforts in the past. "The judge mentioned in the judgment that it will create dif- ficulty, but, nonetheless, he felt the obligation to pay support has been fulfilled," says Na- thens. Donald Baker of Baker & Baker Family Lawyers in Toron- to says it was clear that the court was not impressed with Yvonne Choquette. "If you look at the time frame and the assessment of the ability of the wife to work, and if you look at what the court felt was her total lack of effort in coming up with evidence to substantiate her position that she was either untrained or incapable or that she had made efforts to find [work], which were not fruitful, the court, probably rightly, re- ally pooh-poohed what she was saying," says Baker. According to the court de- cision, Yvonne Choquette had obtained an accounting desig- nation as well as a real estate li- cence by the time of the divorce and declared her intention to find work, and she had enrolled in school again full time. By the time the application to cut off support was made, she still had not found work, but she had invested money from the divorce in real estate that she rented out in Saskatchewan and worked on an organic farm that operated at a loss. The decision pointed out that there was no evidence that she had attempted to search for a job at various points through- out the 22 years or evidence that she suffered from depression or a disability as she had claimed at various points. One piece of evidence sub- mitted was a letter written in support of a job application in 2015, but the judge noted that, "The letter is so poorly writ- ten with so many grammatical errors that it could perhaps be seen as a deliberate effort not to obtain the job for which it was submitted." Baker says this was the cul- mination of years of not doing anything and relying on the substantial spousal support. "I think the court said, 'Enough — this is contrary to what the Divorce Act says. You're supposed to become self-supporting and you really haven't made any efforts to do so over 22 years,'" says Baker. "That's the bottom line." Baker says it's unusual for the court to make these kinds of de- cisions because it is reluctant to cut off support, but it will often reduce support over time. "This is a really egregious ef- fort that the wife has made to say the court isn't going to do that to me," says Baker. "They did." Harold Niman of Niman Gelgoot and Associates LLP in Toronto, who was council for Kevin Choquette, says a notice of appeal has been filed so he didn't want to offer much com- ment. "It's always difficult when you represent a man who has substantial financial resources to obtain an order terminating support obligations," says Ni- man. "Justice Hood carefully ana- lyzed this case and determined that enough was enough." "We'll see what the Court of Appeal does with it," Niman adds. Nathens is not representing Yvonne Choquette for the ap- peal. LT FAMILY LAW 1.800.653.0925 ex.407 divorcemate.com sales@divorcemate.com Now Available in the Cloud Instant, secure access to all of your client files at home, at work, at court. DivorceMate-1/4_LT_Apr9_18.indd 1 2018-04-03 11:32 AM Ken Nathens says a recent ruling is impor- tant because a judge terminated a long- term support obligation. 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