Background
Cheryl and Clark Holden separated in July 2019 after 21 years of marriage. Both had worked during the marriage. The trial judge attributed annual income of $154,008 to the wife and $210,794 to the husband. Although the wife had moved to Ottawa to support a career opportunity for the husband, the judge found that her own career had progressed steadily and had not been compromised by the relocation or by her guardianship responsibilities for her niece.
Following a six-day trial concerning property and support, the Superior Court ordered the husband to pay the wife $55,000 in net lump-sum spousal support, offset against the $88,183.29 equalization payment she owed him, and fixed costs at $30,000. The judge rejected compensatory entitlement but found “some” non-compensatory entitlement. The wife appealed the support and costs orders, arguing that the judge failed to determine support duration, inadequately explained the choice of lump-sum rather than periodic support, and awarded an amount outside the Spousal Support Advisory Guidelines range. Neither party appealed the property determinations.
The Court’s Holding
The Court of Appeal dismissed the appeal, holding that the trial judge made no reviewable error in either the form or quantum of spousal support. Because the “Rule of 65” applied, periodic support would have been indefinite and variable. The trial judge nevertheless had discretion to select an appropriate lump sum based on all the circumstances. From the attributed incomes and the judge’s characterization of the award as between the low and middle SSAG ranges, the court inferred that the $55,000 award represented approximately six years of support.
The trial judge was not required to give detailed reasons for choosing lump-sum support because both parties had requested that form of award, and the wife continued to seek a lump sum on appeal. Nor was the judge bound to award an amount or duration generated by the SSAGs, which are advisory rather than mandatory. Her extensive factual findings supported the conclusion that the wife had no compensatory entitlement and only limited non-compensatory entitlement. The appeal, including the challenge to the trial costs order, was dismissed, and the wife was ordered to pay the husband $15,000 in appeal costs, inclusive of HST, within 30 days.
Key Takeaways
- Spousal-support decisions receive substantial appellate deference and will generally stand absent an error in principle, a significant misapprehension of the evidence, or a clearly wrong award.
- A court may convert indefinite periodic support into a lump sum using a notional duration that reflects the case-specific evidence and the recipient’s degree of entitlement.
- The SSAGs are advisory, and detailed reasons for selecting lump-sum support may be unnecessary when both parties expressly request that form of payment.
Why It Matters
The decision confirms that the Rule of 65 does not require a court to capitalize support over any fixed period when making a lump-sum award. Even where periodic support would be indefinite, a trial judge retains discretion to choose a lower notional duration and quantum supported by the factual findings.
It also underscores the consequences of the parties’ litigation positions. A party who requested lump-sum support at trial will face difficulty arguing on appeal that the judge inadequately justified granting support in that form, particularly where the challenge is effectively directed at the amount rather than the payment structure.