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MOTHER OF 3 MINORS ASKS FOR HIGHER SPOUSAL MAINTENANCE FROM THE FATHER

Barnard & Welsby [2020] FCCA  1721  (1 July 2020) 

This case involves a mother asking for a higher spousal maintenance from the father  

Facts:  

Ms. Welsby (wife) and Mr. Barnard (husband) were married in 2008 but separated md-2015. The parties have three children, X, Y and Z, nine years, eight years, and four years of age respectively.  

The wife sought the husband to pay her spousal maintenance in the sum of $399.65 per week payable weekly for a period of five years whereas the husband seeks to pay $90 per week for a period of three years or until the wife achieves a gross annual income of $70,000.  

Issue: Is the mother entitled the spousal maintenance of $399.65 per week from the father?  

Law:  

  • 75(2)- Matters to be taken into consideration in relation to spousal maintenance:  

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and  

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;  

Analysis:  

In exercising jurisdiction under section 74 in relation to the making of a spousal maintenance order, the Court must take into account only the matters referred to in subsection 75(2).  

The wife’s ability to engage in appropriate gainful employment is affected by her current employment skill levels and her ongoing responsibility for the day-to-day care and control of the children of the marriage who are under 18, being eight, seven and three years of age at the time of hearing  

Furthermore, the husband’s income is $2,884. The court further accept that his expenses are $2,757 per week. Accordingly, the husband has an excess of income over expenses of $127 per week. The wife seeks for $399.65 per week. While the standard of living of the wife can be raised by the making of a spousal maintenance order, it can only do so to the extent that the husband has an ability to pay that spousal maintenance.  

Conclusion:   

The court finds that the husband is liable to maintain the wife by a payment of spousal maintenance in the sum of $127 per week. 

  

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