4. What is the criterion for maintenance pending suit?
The sole statutory criterion for maintenance pending suit (“MPS”) is reasonableness. The courts have interpreted this as meaning fairness in the circumstances of the case.
In assessing what is reasonable, a key reference point is the marital standard of living. The general aim is to ensure that, while the proceedings are ongoing, the applicant is not forced into a standard of living lower than what was enjoyed during the marriage while the suit is pending. However, the court is not required to merely replicate that standard if it is no longer realistic.
MPS is concerned with interim support, not the final redistribution of wealth or long-term capital adjustment. The court will therefore focus on the applicant’s immediate and reasonable needs, usually by considering whether the applicant’s proposed budget is fair and realistic in light of how the family lived before separation. Those needs must then be balanced against the respondent’s income, resources and ability to pay.
Where either party’s financial disclosure is obviously deficient or incomplete, the court may make robust assumptions about his/her financial resources and may err in favour of the other party when considering his/her financial position, such as whether the applicant has the financial resources to cover his/her own expenses, or whether the respondent has the ability to pay for the reasonable immediately need of the applicant.
While a court cannot make orders directly against third parties such as parents, it may take a broad view of a party’s access to family funds based on past conduct and financial reality.
In short, the court may look at:
- the applicant’s own financial position
- the applicant’s immediate financial needs;
- the marital standard of living;
- the respondent’s income and resources (including financial support from 3rd party);
- the respondent’s ability to pay; and
any obvious gaps or deficiencies in the respondent’s financial disclosure.
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