If you find yourself in a situation where your ex-spouse has experienced a substantial increase in income since the time of your separation, you may be wondering whether you are entitled to a reassessment of spousal support.

What is Spousal Support?

Spousal support is financial assistance that one spouse may be required to pay to the other spouse after a separation or divorce, ensuring the recipient's financial stability. Spousal support is usually paid on a monthly basis; however, it can also be paid as a lump sum.

According to section 15.2 of the Divorce Act and further discussed in the Supreme Court of Canada case, Bracklow v. Bracklow, there are three reasons a spouse would be entitled to spousal support:

  1. Compensatory spousal support, which is meant to compensate the lower-income earning spouse for sacrifices and contributions made during the marriage;
  2. Non-compensatory spousal support, which is meant to allow the recipient spouse to enjoy a similar lifestyle as they did while married; and,
  3. Contractual.

In determining whether to award spousal support, a judge must consider many factors, including:

  1. The parties' financial situations;
  2. The length of time the spouses cohabited;
  3. The roles of each spouse during the marriage;
  4. The impact of the breakdown of the marriage on each party's financial situation;
  5. The ongoing responsibilities for the care of children; and,
  6. Any previous arrangements made regarding spousal support.

The Spousal Support Advisory Guidelines provide parties and the Court with some guidance in determining the quantum and duration of when calculating reasonable spousal support. It is important to remember, however, that the Court retains discretion and the Guidelines are advisory only – they are not law.

Are you entitled to increased spousal support if your former partner's income increases?

If one party experiences a significant change in their income after a spousal support arrangement has been made, it may constitute grounds for seeking a variation in spousal support, and the receiving party may be eligible for a reassessment of spousal support amounts.

Whether you are entitled to an increase in spousal support if your former partner's income increases is largely discretionary and is dependent on the circumstances and basis of the entitlement to spousal support. A spousal support order would not change automatically, and it is the responsibility of the recipient spouse to apply to vary the order.

According to section 17(4.1) of the Divorce Act, before the court varies a spousal support order, it must 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. For example, since non-compensatory spousal support is intended to allow the lower-income earning spouse to enjoy a similar lifestyle as they did while married, an increase in income would usually not be relevant. A recipient's entitlement to post-separation increases in income is more likely to be found in cases of compensatory support.

Chapter 14.3 of the Spousal Support Advisory Guidelines discusses that "a rough notion" of causation is applied to post-separation income increases for the payor when determining if the income increase should impact spousal support entitlements. As such, it will depend on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the income increase, and the reason for the income increase.

The likelihood of full or substantial sharing becomes more likely with child support cases, given the fact that there is a strong compensatory nature of the claim. If there is no child support in question, the Court will consider the following:

  • long traditional marriages;
  • medium-length and longer marriages;
  • strong compensatory claims where there is primary responsibility for child-rearing;
  • strong compensatory claims in longer marriages;
  • prior agreements discussing future increases in income;
  • support/cohabitation while in school;
  • payor spouse continuing in the same job or area of work post-separation
  • claims that were impacted by an inability to pay; and,
  • income increases shortly post-separation.

Varying the Spousal Support Order

If the payor spouse does not consent to vary the spousal support order, it may be necessary to commence a Motion to Change. If applying for a variation, the applicant must meet the threshold to prove that there is a material change in the circumstances. The material change must be substantial and continuing, and if known at the time of the initial order, would likely have resulted in a different order. Determining what constitutes a material change is up to the court's discretion.

Conclusion

Navigating the complexities of spousal support in the face of a significant increase in your ex-spouse's income requires a careful understanding of the legal framework due to its highly discretionary nature.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.