In the recent Divisional Court decision, Dean v. Dean 2016 ONSC 4298, Justice Hoskins reiterated the first-family-first principle, which stands for the idea that obligation to the first family takes priority, and obligations to a second family must be considered in context.
Vesna Dean and James Dean were married for 13 years and separated in 2006 with no children of marriage. In 2009, a final Divorce Order on consent was made, ordering James to pay spousal support of $1,500.00 to Vesna for unlimited period of time. Vesna is seriously disabled and her only other source of income is CPP disability and insurance disability benefits.
In 2013, James brought a motion under s. 17 of the Divorce Act to decrease the final spousal support order based on material change in circumstances, including: the adoption of his partner’s three children, his partner’s inability to work because of one child’s medical needs, the deterioration of his own health and the adoption of a deceased friend’s child. The motion was heard in 2015 and the court ordered a reduction in spousal support to almost half of the initial amount.
Vesna appealed to the Divisional Court. The Divisional Court reversed the motion judge’s order, finding that the motion judge erred in law by making findings unsupported by the evidence, by failing to consider the first-family-first principle and the voluntary nature of husband’s decisions. Justice Hoskins of the Divisional Court stated that more detailed information and medical evidence was needed to make findings as to James’ medical condition and its impact on the material change in circumstances. Justice Hoskins reiterated that the onus is on the party seeking a variation to prove a material change in circumstances, as not every change is material.
The “first-family-first” principle is the theory that payor’s obligations to the first family take priority over any subsequent obligations. The obligations to the second family must be considered in context and with regard to the voluntary assumptions of such obligations. Justice Hoskins found that James, “…voluntarily made a series of decisions that contributed to his increased financial obligations.” Justice Hoskins focused on the fact that James made these voluntary choices just after agreeing to pay Vesna $1,500.00 in monthly spousal support and stated that, “[t]he motion judge erred in law when she saddled the appellant with the financial brunt of the respondent’s voluntary decisions.” The court highlighted that the adoptions were James’ voluntary choice, which he made without considering their financial effect.
This case is of particular importance to anyone looking to vary spousal support orders and the impact that the current support obligation will or will not have on seeking such variation. The case highlights the court’s unwillingness to vary spousal support orders on the basis of material change that is the result of the payor’s own voluntary actions and choices.