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How Do I Vary BC Interim Support

Vancouver Alimony Spousal Support lawyers help you understand how spousal support works in Vancouver, across BC, and in Calgary. Rana Yavari explains what happens to spousal support when the paying ex-spouse’s income increases after the final Order on separation is made.

Spousal Support Entitlement To Post-Separation Increases In Income Call 1 877 602 9900

Vancouver Alimony Spousal Support lawyers know the issue of determining whether a recipient of spousal support is entitled to post-separation increases in income comes up repeatedly in family law. Unlike child support, there is no automatic right to have an annual review of income levels or automatic increase in spousal support commensurate with ability to pay.

Rather, the presumption holds that spousal support is determined in light of income at the date of separation. The recipient is not automatically entitled to share in post-separation increases in income of a former spouse; any increase must be examined on a case by case basis. The federal Spousal Support Advisory Guidelines contain a nice summary of what happens when the paying and receiving spouse’s incomes change.

Vancouver Alimony Spousal Support Call 1 877 602 9900

Rana Yavari, Vancouver Alimony Spousal Support lawyer, explains that in order to determine whether a post-separation increase in income should be included in a spousal support calculation, the courts consider the following three-step process:

1)      confirm the basis for continued entitlement to spousal support;

2)      the roles of the parties during the marriage and consider the length of the marriage, with a view to determining whether the payee contributed to the payor’s ability to earn the increased income post-separation;

3)      the underlying reason for the post-separation increase in income to ensure that the payee’s contribution is sufficiently connected to the actual increase, in whole or in part, such that they should share in it.

The court in Hartshorne v. Hartshorne, 2010 BCCA 327 found the wife was entitled to higher Vancouver Alimony Spousal Support after her ex- husband’s income went up as she helped her husband establish his law practice and contributed to his improved income:

[57]           The appellant submits there was no evidence that the respondent contributed to the acquisition of his skills or credentials, or to the advancement of his career in a manner that led to his ability to earn his now increased income (using the language of Langston J. in D.B.C. v. R.M.W.). However, the trial judge arrived at a fact-based determination for including the appellant’s post-separation income in his quantification of the lump sum award in accordance with the comments of the authors of SSAG (referred to at para. 37 above). In that regard he made the following findings: (i) that there was “a clear temporal link between their marriage and this increase [in the appellant’s income between 1987 and 1999] with no intervening change in Mr. Hartshorne’s career, or any other event, that could explain the increase (at para. 114); (ii) that “Ms. Hartshorne’s contributions in those years [between 1987 and 1998] helped Mr. Hartshorne establish his practice and contributed to his improved income in the 2000-2007 period” (at para. 116); and (iii) that the parties made a joint investment in Mr. Hartshorne’s career and therefore “[i]t would be unfair for him alone to reap the benefits” (at para. 117).

Vancouver Alimony Spousal Support

The court in  Judd v. Judd, 2010 BCSC 153 stated that the question of whether post-separation increases in income should be taken into account in a post-separation Vancouver Alimony Spousal Support dispute is a fact-driven one, depending upon the connection that the increase has to the recipient’s contribution during the marriage:

[23]           The resolution of the issue of post-separation wage increases is clearly fact based. The principle that appears to emerge from current case authority is that the connection the increase in salary has to the recipient’s contribution during the marriage is determinative. If the increase in salary is founded in expertise and seniority established during the marriage and no intervening event or events are the cause of the increase, then the increase is to be included unless the recipient’s role during marriage necessitates a different determination. If an event after separation is the reason for the increase, in whole or in part, then the increase may be excluded from consideration, also in whole or in part.

[24]           In this case, the husband, although trained before the marriage, developed his expertise and seniority during the marriage. The wife subordinated her career to the needs of the family by working part-time, becoming a full-time stay-at-home mother for a number of years, and, perhaps most significantly, moving to and remaining on the Sunshine Coast, where there are limited employment opportunities, for the benefit of their children. As noted by Leask J. in Hartshorne at para. 117, this couple “divide[d] their family responsibilities in such a way as to make a joint investment in one career”.

[25]           The post-separation increases appear to be divisible into two categories: those arising from regular salary increases and those arising from the promotion. Should a distinction be drawn between them?

[26]           The authorities noted above indicate that the portion arising from regular wage increases due to length of service with the same employer should be included for the purposes of a review, taking into account the length of the marriage and the roles of the parties in the marriage.

[27]           More problematic is the increase arising from the promotion which presumably requires the husband to work longer hours and to take on more responsibilities. Arguably the promotion, at least in part, recognized the husband’s length of service and experience which were acquired during the marriage. Presumably, it also recognized his abilities and performance from both before and after the separation.

[28]           The question, in this instance, is whether the promotion is sufficiently disconnected from the marriage that the salary increase should not be included in this review. In my opinion, the husband’s promotion is sufficiently connected to the wife’s contributions as a wife and mother and his increased income should be taken into account on this review.

If you have Vancouver Alimony Spousal Support questions call our experienced Vancouver Alimony Spousal Support lawyers toll-free across Bc and in Calgary at Call 1 877 602 9900.