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After a separation, it is not uncommon for one or both spouses to move on to a new romantic relationship, have new biological children or take on the role of a step-parent. This is sometimes referred to as a “second family”. Having a second family can create new financial obligations, and those obligations can sometimes create strain when a payor is also saddled with an obligation to pay spousal support to their first spouse.

This situation can arise at the first instance, when a spouse re-partners soon after a separation and there is a second family already in existence when determining spousal support to the first spouse. It can also arise in the context of a “variation”, where a spousal support obligation has already been determined, and years later the support payor is trying to reduce or terminate support, using the “second family” as a factor.

The general principle is that “first families come first”, meaning that a payor’s obligations to their first family take priority over any subsequent obligations. However, there are certain situations where a Court may be willing to recognize that a payor’s obligations to their second family reasonably decreases their ability to support the first family.

While this is an evolving area of law with no hard and fast rules, a review of the relevant Caselaw reveals that the Court tends to consider the following factors when determining whether obligations to a second family should impact spousal support to the first spouse:

  1. Did the payor willingly take on an obligation for a second family, knowing they had a pre-existing obligation to the first family? Taking responsibility for a new partner’s children or adopting a child is less likely to impact spousal support vs. having your own subsequent biological children.
  2. Is there other income available to the second family? For example, a new spouse who can work and bring more income to the family, or child support being received for step-children.
  3. Will spousal support to the first spouse create financial hardship to the second family? If the payor earns sufficient income to support their first spouse without hardship to the second family, it is unlikely a Court will reduce spousal support to the first spouse.

In summary, if you have a pre-existing obligation to pay spousal support to a first spouse, it would be wise to understand that having a second family will not necessarily change that pre-existing obligation.

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