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2017~ When it comes to support payments, ‘first families first’ is the general rule

2017-06-09 18:20 [BANK] Source:Netword
Guide:Laurie H. Pawlitza: When about 40% of married couples divorce and more than 80% remarry, this is a common problem, and it is often left up to the court

When it comes to support payments, ‘first families first’ is the general rule

2017~ When it comes to support payments, ‘first families first’ is the general rule

Laurie H. Pawlitza, Special to financial Post | 2017-05-16T20:49:20+00:00">May 16, 2017 4:49 PM ET
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Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.

When a husband has an order that requires him to pay support to his former wife, what happens when he re-marries and takes on the support of his New wife and her children?

In Canada, where about 40 per cent of married couples divorce, and more than 80 per cent remarry, this is a common problem, and it is often left up to the courts to decide where to draw the line. 

But those who assume that their New familial obligations, however onerous, should earn them a break on their previous responsibilities can be in for a rude awakening.

A spouse who already has support obligations makes a conscious choice when repartnering. This gives rise to the “first families first” principle.

Most often, a support payor’s obligations to a first family take priority over subsequent obligations to a second family.

But when the prior obligations affect the second family too, which family should bear that burden? An appeal from the Superior Court of Justice by Ontario’s Divisional Court confronted this issue head on.

In Dean v. Dean, the husband and his first wife were married for 13 years and had no children. The first wife had significant health problems which prevented her from working. When the parties settled, the husband agreed to pay spousal support to the wife for an indefinite period of time.

At the time that the consent court order with his first wife was made, the husband had already moved in with his girlfriend and her three children from a prior relationship.

After several years, however, the children’s biological father demanded that the husband adopt his three children. (Adoption absolves the biological father of his obligation to pay child support.)

The husband agreed, adopted the three children and married his girlfriend.

Then, after the death of a close friend (a single parent), the couple adopted the deceased friend’s child. The New family bought a bigger home, upgraded their vehicles and paid down some debt.

Getty Images/Thinkstock

Not surprisingly, given his New responsibilities, the husband asked the Court to reduce his support obligations to his first wife.

In order to vary a court order for child and spousal support, the change must be material. The onus of proving the change is on the person seeking it and the change cannot be temporary.

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