Leaving A Short-Term Marriage With Young Children? You Need To Read This Now!

By Sydney B. W. Archibald

Spouses separating after a brief marriage with young children often wonder if they have an entitlement to spousal support and whether that claim is worth pursuing.

A recent Ontario decision, LiSanti v LiSanti 2022 ONSC 7000, provides guidance on these issues and acts as a warning against ignoring potentially sizable spousal support entitlements. The case is an important reminder to take a close look at future disadvantages for spouses in these scenarios and to avoid time limits on spousal support except in rare instances.

In LiSanti, the parties were married for two years and had one young child who was 6 years old at the time of the trial. The mother was the primary caregiver throughout most of the marriage while the father worked full-time as a physical rehabilitation therapist. Near the end of the relationship, the mother started work as a bookkeeper on a part-time basis but at trial was pregnant with her new partner and anticipated taking a parental leave of 18 months. She remained the primary caregiver for the 6-year-old child.

The father raised that he had already paid 4.8 years of spousal support and argued that the mother was no longer entitled as any disadvantages she suffered had been addressed. If unsuccessful in this argument, he argued that support should be on the low end of duration (4 years) because the mother was pregnant with a new partner and he should not be impacted by that decision.

The court dismissed both of the father’s arguments. 

The mother was awarded compensatory and needs-based spousal support. The ongoing and future disadvantages resulting from the mother’s childcare responsibilities formed the basis of her compensatory entitlement. Also, the mother’s employment prospects were limited given that her foreign credentials were not recognized in Canada.

On the issue of duration, the court departed from the SSAG and ordered indefinite spousal support subject to a review. The length-of-marriage test and the age-of-children test were applied which resulted in a low-end duration of 4 years and a high-end duration of 17 years. In its reasons, the court cited the Revised User’s Guide commentary that time limits for short marriages with young children will only rarely be the right outcome at an initial hearing.

The case sends three clear and important messages to family lawyers and litigants:

1. The compensatory claim focuses more on the ongoing, future disadvantage than in the past disadvantage;
2. There are two tests for duration under the with child support formula, namely the length-of-marriage test and the age-of-children test; and
3. Time limits will only rarely be the right outcome at an initial hearing for short marriages with young children. The vast majority of these should be indefinite.

If you have any questions about spousal support, or any family law related issues, please contact me, Sydney Lloyd at sydney@sorbaralaw.com.