Brett Coleman
first-family-first principleAs the average length of marriages decreases, and the divorce rate hovers upwards of 48%, the number of “second families” has naturally seen an increase. The surge in second families raises questions about priority of support and resources.

It is important to note that child support always takes precedence over spousal support and that children born of payors are treated equal when it comes to financial support, whether born of first or second marriages.

The recent Ontario case of Dean v Dean involved a 13 year marriage with no children born of that marriage. The husband consented to a final support order wherein the husband agreed to pay $1,500 per month as spousal support to his first wife, with no time limitation (i.e. indefinitely). Four years later, the husband applied to vary that support order, arguing that his second family (new wife and her three children) constituted a material change of circumstances warranting variation of the final order. He argued he could not be expected to continue to pay $1,500 per month spousal support to his first wife in light of his obligation to support his second family.

At the time the final order was entered into the husband was living with his now second wife and had “assumed financial responsibility” for her three children despite the fact that the children’s biological father was paying $1,500 per month in child support for the three children. Three months later, the husband adopted the second wife’s three children from her previous relationship.

The motions court found in the husband’s favor based on the adoption, the deterioration of the husband’s own health (not supported by the evidence), as well as his second wife’s inability to work. The motions Justice ordered a reduction in spousal support from $1,500 per month to $782 per month, and $20,000 in costs against the first wife. The first wife appealed.

On appeal, the Divisional Court reminded us that the trial judge erred in law when she failed to consider the “first-family-first” principle as well as the voluntary nature of the husband’s decision to remarry and to adopt her children from a prior relationship. The first-family-first principle provides that a payor’s obligations to the first family take priority over any subsequent obligations.

In Fisher v Fisher, the court stated:

“While courts generally recognize a “first-family-first” principle … inevitably new obligations to a second family may decrease a payor’s ability to pay support for a first family”.

Accordingly, the Divisional court in Dean went on to say that obligations to a second family must be considered in context. The present case involved a voluntary assumption of an obligation, and the motion court’s decision unfairly saddled the first wife with the financial brunt of the husband’s voluntary decisions. Ultimately, the Divisional Court found that the trial judge erred in failing to consider that the husband’s obligations to the first wife would impoverish his second family. This was contrary to the principles of Fisher and wrong in law on the facts of the case. The wife’s appeal was allowed, accordingly, her support order reinstated and the husband ordered to pay costs.

It seems the first-family-first principle is still very much alive and well in Canada.