9. Spousal Support
...(o) amount and duration under the SSAGs
[202] Larry’s projected annual income for 2010 is $81,000 (rounded). Using Catherine’s income as set out in her sworn financial statement and applying the with-child-support formula under the SSAGs, the monthly spousal support range is: $98(low); $466(mid); and $863(high). The minimum duration under the SSAGs is 5.5 years and the maximum is 11 years, both measured from the date of separation. The minimum period of 5.5 is generally what I thought would be appropriate (I was considering five years). Had Larry been earning $81,000 annually since separation, I would have selected the mid-range support figure of $466, preferring to be conservative in the circumstances of this case, and require that it be paid for the first year after separation, declining to $400 in the second year, $350 in the third year, $300 in the fourth, $250 in the fifth and $200 in the remnant year.As Larry’s ability to pay did not arise until the fourth year after separation, I order (but still provisionally) monthly spousal support of $300 in 2010, $250 in 2011 and $200 for the first six months of 2012.
(p) spousal conduct
[203] Notwithstanding the SSAGs, s. 33(10) of the Family Law Act gives a discretion to the court to consider spousal conduct in arriving at the amount of support:
33(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
[204] Section 33(10) contains a number of key words and phrases, but they are straightforward in meaning and do not present any semantic tricks.
[205] To begin with, “course of conduct” requires something more than an isolated incident.
[206] The words “unconscionable”, “obvious”, “gross,” “repudiation” and “relationship” have meanings in everyday parlance consistent with their use in law. They are defined in The New Shorter Oxford English Dictionary to include the following: “unconscionable” – “showing no regard for conscience; not in accordance with what is right or reasonable”; “obvious” – “plain and evident to the mind; perfectly clear or manifest; such as common sense might suggest”; “gross” – “flagrant, glaring”; “repudiation” – “rejection, disownment, disavowal”; “relationship” – “an emotional association between two people; the state of being related” and “related” means “connected by blood or marriage.”
[207] Section 33(10) provides clear guidance as to when the court may consider the typically-taboo topic of spousal conduct. There is no need to formulate a test. Section 33(10) contains its own test; and it will be a rare case that passes the test.
[208] Section 33(10) does not restrict “a course of conduct” to pre-separation conduct. Also, “relationship,” in my opinion, includes the relationship of spouses as co-parents. The relationship of parent and child is inextricably linked to that of husband and wife. Accordingly, I am permitted to consider the post-separation alienation that Catherine created between Taylor and Larry in determining the amount of spousal support to which Catherine is entitled.
[209] The parental alienation in this case reflects an intent by Catherine to destroy the relationship between Taylor and Larry; it is shocking conduct. It also amounts to a hideous repudiation of the relationship between Catherine and Larry as co-parents of Taylor. The harm here probably is irreparable. Certainly, it is extremely serious at best. How could such conduct not satisfy the requirements of s. 33(10), stringent as they are?
(q) final conclusion on spousal support
[210] While Larry’s access-conduct has largely reflected nothing more than inept parenting, Catherine’s parental-alienation behaviour has been evil. Is there a remedy?
[211] Dollars cannot replace the father-daughter relationship that Catherine has destroyed. However, in the circumstances of this case, justice has only a Hobson’s choice. Catherine’s alienation of Taylor and Larry must be condemned and, an effective method of expressing that condemnation, is by way of a reduction in spousal support.
[212] Accordingly, the spousal support to which Catherine would otherwise be entitled shall be reduced to one dollar monthly.
