First Families First

In Fisher v Fisher, a 2008 Ontario Court of Appeal case, the payor husband remarried and started a new family, arguing that the financial responsibility for his new family made it difficult to support his former spouse. The Court noted “while courts generally adopt a first-family-first principle, which provides that a payor’s obligation to the first family take priority over any subsequent obligations, inevitably new obligations to a second family may decrease a payor’s ability to pay support for a first family.”

Obligations towards second families must be taken in context: where spouses with children separate and one remarries and has another child, the obligation to that second child will affect support for the first family because the payor has an equal obligation to both children.

The Court in Fisher ultimately rejected the payor husband’s argument, reasoning that he voluntarily assumed significant responsibility for his second family. Specifically, the husband supported his new partner’s decision to stay at home, though she was a physiotherapist by profession and was able to work and produce a significant income. This suggested that the payor husband assumed a significant portion of the financial responsibility for his new family.

A few years following the Fisher decision, the Ontario Court of Appeal decided the case of Gray v Gray in 2011 and balanced the competing interests of the parties to settle a reasonable spousal support amount. In the Gray case, Mr. Gray had three young children with his new partner and was the sole breadwinner as his partner left her job to allow the family to move to the United States to allow Mr. Gray to pursue higher career opportunities. Ms. Gray had health conditions which prevented her from working and she claimed spousal support at the high end of the Spousal Support Advisory Guidelines range. The court, while balancing the party’s interests, settled for an amount on the lower end of the range since this amount would allow Mr. Gray to meet his obligations to both families, however also stated that Ms. Gray needed to make “lifestyle choices” if she knows she was unable to work due to health conditions. Finally, taking Mr. Gray’s new family into account, the court refused to order arrears as it would cause hardship to Mr. Gray’s new family.

The Court will typically take second families into consideration and will make a determination as to whether a second family will decrease the payor’s ability to support the first family. They will consider whether it was a voluntary assumption of an obligation, whether there is a new child of the payor’s in the new family, which would suggest that the payor would have an equal obligation to the children in both the first and second family, and whether there is other income available for the second family. The Court will also consider whether support paid to the first family would impoverish the second family, and if there is any potential hardship to the new family. Finally, it is important to note that child support will take precedence over spousal support.