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Family Law

Are You Entitled to Spousal Support? Post-Separation Income Increases

By Judith Janzen

Where there has been a post-separation increase in the payor spouse’s income, are you entitled to spousal support that reflects that increase? In Hersey v. Hersey, 2016 ONCA 494 the Court of Appeal for Ontario definitively stated that spouses are not automatically entitled to share in post-separation increases in income. To be entitled to spousal support commensurate with a post-separation income increase, the recipient spouse must establish a basis for the claim. Otherwise, spousal support is to be generally calculated on the basis of parties’ incomes as of date of separation.

Entitlement to spousal support: Examining Hersey v. Hersey

Stephen and Christine Hersey married in 1986 and had one child. Divorce proceedings commenced in 2005 after Stephen assaulted Christine. Throughout the marriage Stephen worked full-time as a lawyer and Christine worked full-time as a teacher. In 2007 a final order was issued in the divorce proceedings: Stephen (who earned annual income of roughly $192,000) was ordered to pay child support in accordance with the Child Support Guidelines, and Christine was entitled to spousal support from him in the amount of about $2,000 monthly.

Between 2007 and 2009 Christine took three extended sick leaves from work, which she said were necessary to manage her deteriorating health and inability to cope with the divorce proceedings. She also asserted that the assault had a significant, continuing impact on her mental health. In 2013 Christine reduced her employment to part-time, which decreased her income to about $65,400. Her full-time salary would have been $79,000. She claimed she was medically unable to work full-time because of pain in her knees and an anxiety disorder, brought about as the result of the marriage breakdown and Stephen’s abusive litigation strategy towards her.

Motion to increase entitlement to spousal support

In 2015 Stephen brought a motion seeking a reduction in the child support order because their son would be attending university that fall. Christine agreed to that change and then commenced her own motion for increased retroactive and prospective spousal support based on  ss. 15.3(3) and 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Her motion for an increased entitlement in spousal support was based on factors which included:

  • The reduction in child support (A variation in child support can in appropriate circumstances be considered a change in circumstance for the purpose of applying for variation of an earlier spousal support order per s. 15.3(3) of the Divorce Act);
  • The significant increase in Stephen’s income ($324,000 in 2014), while Christine’s income had decreased since entitlement to spousal support was first determined in the divorce proceedings in 2007; and
  • Christine was medically unable to work full-time (i.e., her medical condition, brought on by Stephen’s attack on her and his abusive litigation strategy, necessitated an increase in spousal support).

Christine’s motion was heard in December 2015. The parties agreed there had been a change in their financial circumstances. Nevertheless, the motions judge determined that Christine was not entitled to increased spousal support.

Appeal from decision to deny increased spousal support

When the appeal was heard, Christine was 61 and Stephen was 64. The Court of Appeal held that the trial judge rightly concluded on the evidence before her that Christine failed to establish entitlement to share in Stephen’s post-separation income increases. There are many factors that inform the court’s exercise of discretion on the treatment of post-separation increases in a payor’s earnings in spousal support cases (for example, see Thompson v. Thompson, 2013 ONSC 5500 at para. 103 for an extensive list of general principles). The following were the main factors in this matter:

  1. The careers of the spouses were established prior to the marriage and there had been no significant changes in the careers of either.
  2. The evidence about child care responsibilities during the marriage was conflicting. Christine had not made the sorts of sacrifices that the courts have required to justify an award for increased compensatory support.
  3. The trial judge did not accept that Christine’s medical condition was such that it prevented her from working full-time.
  4. The spousal support Stephen was already paying was within the suggested range based on a “Divorce Mate” calculation.
  5. Stephen was two years from retirement at which time his pension would be $70,000 per year.

In light of those factors, the trial judge correctly dismissed the claim for increased retroactive and prospective spousal support. Entitlement to spousal support was as previously calculated on the basis of the parties’ incomes as at the date of separation.

Are you entitled to spousal support? Bottom line on post-separation increases in income

Spouses are not automatically entitled to share in post-separation increases in income. The Spousal Support Advisory Guidelines 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 entitlement to spousal support.