Spousal support refers to payments made by one spouse to the other spouse after the couple separates or gets a divorce. It is designed to help a spouse become financially self-sufficient after a relationship ends.
This article looks at whether the amount of spousal support increases if the paying spouse starts to earn a higher income. We look at a recent case of the Court of Appeal for Ontario in which the recipient spouse made such an argument.
Not automatically, but the recipient spouse may be able to apply to vary the spousal support order.
Under section 17(4.1) of the Divorce Act (Act), before the court varies a spousal support order, it needs to be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order. It is possible that an increase in income constitutes a material change in circumstances.
Under section 17(7), a variation order that varies spousal support should:
– recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
– apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
– relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
– promote the economic self-sufficiency of each former spouse within a reasonable period of time.
According to the Spousal Support Advisory Guidelines (Guidelines), whether a post-separation increase in income is shared involves a complex, fact-specific decision.
The Guidelines explain:
Some rough notion of causation is applied to post-separation income increases for the payor, in determining both whether the income increase should be reflected in increased spousal support and, if it should, by how much. It all depends on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (e.g. new job vs. promotion within the same employer, or career continuation vs. new venture).
In Hendriks v Hendriks, the parties divorced after an 18-year marriage. They have three children. Litigation ensued and they settled it with an agreement that was incorporated into a court order providing for child support and spousal support.
A few years after the agreement, the respondent father began new employment in Qatar and his income increased from $78,000 to approximately $214,000. The appellant mother brought a motion to vary the child support and spousal support. We look at the spousal support issues below and simply note that the motion judge declined to order ongoing child support.
The motion judge determined that the respondent’s increase in income was attributable to intervening causes and therefore refused to increase spousal support. Her Honour found that the increase in income was unrelated to the parties’ marriage or the roles they adopted during the marriage, specifically it was a result of the reorganization of his employment arrangements and as a result of significant lifestyle changes he made since the separation including moving to Qatar. The changes in the respondent’s circumstances were sufficiently disconnected from the marriage so as to not qualify as a material change in his circumstances.
The Court of Appeal upheld this determination.
The appellant also argued that she had experienced a material change in circumstances following the termination of child support. The motion judge held that the appellant’s entitlement to spousal support was contractual in nature because it emanated from the agreement, and was not compensatory or needs-based support. Given that the agreement did not envisage increased support, the appellant was not entitled to additional spousal support.
The Court of Appeal disagreed. It explained that despite the fact there was an order incorporating an agreement, the court must consider whether a variation in support should be granted based on whether there has been a material change in the circumstances of either former spouse.
The Court pointed to section 15.3(3) of the Act which relevantly provides that where, as a result of giving priority to child support, the amount of spousal support is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying to vary spousal support.
The Court of Appeal noted that spousal support was set at $150 per month at a time when the respondent was paying support for three children and that the Guidelines provide for differing amounts of spousal support depending on whether child support is or is not payable.
The Court found that the majority of household and childcare responsibilities during the marriage fell to the appellant and impacted her ability to pursue her career.
The Court ordered spousal support of $1,500 per month (limited to 108 months), which was in the mid-range (for the without child support rate) under the Guidelines based on the respondent’s income prior to the increase.
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