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Post Separation Income Increase Spousal Support cases really ramp up tension between separated former spouses. On the one hand the paying spouse wants support to end or be reduced while on the other hand the lower income spouse feels entitled to a fair share of the post separation increase.

Our Vancouver and Calgary Post Separation Income Increase Spousal Support lawyers understand that a close look at the basis for the original spousal support award holds the key to whether the income increase will be shared or not.

When you face a prickly Post Separation Income Increase Spousal Support it pays to call Vancouver’s Best* Family law Firm according to prestigious Top Choice Awards. Call us toll free across Canada at 1-877-602-9900.

Post Separation Income Increase Spousal Support Differs From Child Support Awards

A paying spouse’s child support is readily increased when the paying spouse’s income goes up. But the same is not automatically true for spousal support. So how does spousal support work when an ex-spouse’s income increases substantially after separation?

Should support stay at the level it was set at on separation? Should it go up?

The answer depends on a rigorous analysis of how support was awarded. The problem is that judges at trial do not break down by percentage which part of a spousal support award was non-compensatory (means and needs based) or compensatory (assessing advantages and disadvantages the two spouses obtained or suffered during the relationship).

Good Post Separation Income Increase Spousal Support Lawyers Analyze The Basis For Original Award

Often, on applications by the lower earning spouse to increase support when their ex-spouse’s income skyrockets after separation, courts might be tempted to slavishly apply the spousal support advisory guidelines but our skilled Post Separation Income Increase Spousal Support lawyers say that would be a mistake.

As the BC decision in Hartshorne v Hartshorne 2009 BCSC 698 points out, when spouses make a conscious decision to place all their financial eggs into one basket, in a breadwinner homemaker scenario,  post separation income increases are susceptible to a presumption of part of the increase being shared with the recipient spouse.

Paying for the higher income spouse’s schooling, building up a joint business or professional practice, lending money or guaranteeing debt to expand a family company, moving and giving up a career or a job to support their spouse, increased income based on promotions on the same career path, being a homemaker and raising children by agreement while one spouse’s career takes off all weigh in favour of sharing the increased income.

However income increases arising from new career paths, new ventures where the ex-spouse took new risks and made sole sacrifices and put in their sole energies and income increases that occur only years after separation augur in favour of no sharing of the post separation income.

A recent Ontario Court of Appeal case in Hersey v Hersey 2016 ONCA 494 restated a very nice multi-factor analysis that we can use to guide us in a Post Separation Income Increase Spousal Support dispute.

[19]         In her consideration of these issues, the motions judge relied on the principles summarized in Thompson v. Thompson, 2013 ONSC 5500, at para. 103. At para. 12 of her reasons, she quotes from that decision in some detail.

[102]      By contrast, in Fisher v. Fisher,[105] where the Court of Appeal was dealing with a non-compensatory support claim, Lang, J.A. did not consider the payor spouse’s post-separation income in determining the spousal support claim.  Rather, she averaged out the spouses’ respective incomes during the three years prior to separation and in the year of separation. These two cases provide a backdrop against which to analyse the issue of post-separation increases in a payor’s income, and they suggest that a fundamental consideration in determining how to treat such increases is whether the spousal support claim is based on compensatory or non-compensatory grounds.

[103]      The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of  post-separation increases in a payor’s earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court’s exercise of discretion on this issue:

a)      A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases.[106]

b)      The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship.[107]  

c)      Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances.  The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income.[108]

d)     The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success.  The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training.  The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case.[109] 

e)      A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant.[110]  When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation. 

f)      In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career.[111] 

g)      If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.[112] 

h)      By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.[113]

i)        Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.[114]

j)        Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase.[115]

k)      Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult.[116]

l)        The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post–separation income increases.[117]

m)   Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases.[118]

Post Separation Income Increase Spousal Support – No Sharing When Two Careers and Shared Childcare

In the end result the Ontario court of appeal did not permit a sharing of the increase based on both parties maintaining careers and sharing childcare during the marriage.

[20]        She concluded on the evidence before her that the appellant failed to establish a right to share in the respondent’s post-separation income increases. She found that the careers of the parties were established prior to the marriage. The appellant was a teacher and the respondent, a lawyer. There had been no significant changes in the careers of either. The evidence about child care responsibilities during the marriage was conflicting. She concluded that the appellant had not made the sorts of sacrifices that the courts have required to justify an award for increased compensatory support. Accordingly, she concluded that spousal support should be calculated on the basis of the parties’ incomes as at the date of separation.

Don’t take a chance if you are involved in a high stakes BC or Calgary Post Separation Income Increase Spousal Support dispute. call Lorne N MacLean, QC or one of his colleagues at MacLean Law today Call toll free 1-877-602-9900.

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