Do You Owe a Spousal Support Obligation to Your Spouse if They Become Sick or Disabled Post-Separation?
Are you on the hook for spousal support if your spouse becomes sick or disabled and unable to work after the separation? The answer to this question might be a little more complicated than you expected.
In the case of Bracklow v. Bracklow, 1999 CarswellBC 532, [1999] 1 S.C.R. 420, it was established that where one spouse becomes disabled due to illness post-separation it is possible for a Court to Order the other spouse to pay spousal support. This is based on the premise that a person who undertook to provide for their spouse during marriage is under a social obligation to provide for that spouse’s post-marriage needs if those needs are palpable and he or she has the ability to pay for such needs. At common law, there is a presumption of mutuality and interdependence that exists during a marriage and, if this is not rebutted, it is likely that a Court will see each spouse’s social obligation as existing for a reasonable period of time. Where such mutuality and interdependence exist, it is to be weighed alongside the other factors and objectives outlined in the Divorce Act, RSC 1985, Cap. 3 (2nd Supp).
For instance, in the case of Fyfe, [2011] O.J. No. 4099, a husband applied for temporary spousal support after being diagnosed with cancer post separation. It was held that a prima facie case for spousal support was established; however, as the wife had a monthly deficit of approximately $2,000.00, there was no ability to pay any child support.
What can be drawn from this is that so long as there is an ability to pay, if you or your spouse becomes significantly sick or disabled and unable to work post-separation, there is a possibility for entitlement to spousal support despite the fact that the sickness or injury occurred after the marriage breakdown.
If you or anyone you know has any questions regarding spousal support or any other issues associated with a marital or common law separation, please contact one of Key Murray Law’s experienced Family Law practitioners.
Jared Kelly
Articled Clerk
902-368-7807
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.
