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Post-Separation Increases of Income for Spousal Support Purposes

May 25, 2018

There is no automatic presumption that a spouse is entitled to an increase in spousal support when a spouse’s post-separation income increases.  By the same token, a spouse is not necessarily not entitled to share in post-separation increases of income enjoyed by a spouse.

The Honourable Court in Kirvan. v. Kirvan, recently addressed the issue of post-separation increases in income and outlined principles to be considered which include the following:

(a) A spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases.

(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.

(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.

(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.

(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. 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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.”

Kirvan v. Kirvan, 2016 ONSC 7712 (Ont. S.C.J.) at para 187.

A strong compensatory claim is a significant factor. Accordingly, the distinction between compensatory and non-compensatory claims is as follows:

  1. Compensatory claims generally refer to those claims “based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation.”
  2. Non-compensatory claims “involve claims based on need.  ‘Need’ can mean an inability to meet basic needs, but it has also generally been interpreted to cover a significant decline in standard of living from the marital standard.  Non-compensatory support reflects the economic interdependence that develops as a result of a shared life, including significant elements of reliance and expectations, summed up in the phrase ‘merger over time.’”

Carol Rogerson and Rollie Thompson in the Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016 (Ottawa: Department of Justice Canada, April 2016) (the “Revised User’s Guide”), at pp.5-6

Of course, like with many other aspects of family law jurisprudence, although the courts have outlined various factors to be considered when determining whether or not the post-separation increases in a payor’s income will be shared, the outcome will turn on the specific facts of each case and the exercise of the court’s discretion.

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