Brett Coleman
post-separation increases in payor incomeThe issue of whether a recipient of spousal support is entitled to post-separation increases in income comes up repeatedly in family law.

As with most areas of family law, this issue is not clear cut, however, in the 2013 case of Thompson v. Thompson the Ontario Court of Appeal provided a helpful list of principles that should be considered in determining the impact on spousal support of post-separation increases in income:

  1. A spouse is not automatically entitled to increased spousal support when a payor spouse’s income increases,   post-separation.
  2. Typically, the right to share does not arise in cases involving non-compensatory claims only, since the focus in those cases is the standard of living enjoyed during the relationship.
  3. In certain circumstances, compensatory support claims may provide a foundation for entitlement to share in post-separation increases. The strength of the compensatory claim and the nature of the recipient’s contributions during the marriage appear to be the major factors which may tip the scales either for or against.
  4. In particular, a recipient spouse’s case may be strengthened if they can demonstrate that they made contributions during the marriage that can be directly linked to the payor’s post-separation career success. The nature of the contribution does not have to be explicit. Rather, the question is fact-specific and will depend on the unique circumstances of each case.
  5. A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, where the parties’ personal and financial affairs became completely integrated during the course of the marriage and where the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. Where these circumstances are at play, the Court is more likely to find a link between the recipient spouse’s role and the payor’s post-separation success.
  6. In determining whether the contributions of the recipient were sufficient, the Court should consider other factors such 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.
  7. The likelihood of the recipient deriving the benefit of post-separation income increase is heightening if the skills and credentials of the payor spouse that led to the post-separation increase were obtained and developed during the relationship and while the recipient was subordinating their career for the sake of the family.
  8. By contrast, the likelihood of sharing in increases lessens if the evidence indicates that the payor acquired and developed the skills and credentials that led to the increase during the post-separation period, or if the increase is related to an event that occurred post-separation.
  9. Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal education or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.
  10. Evidence that the post-separation increase has evolved as a result of a different 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 made by the payor post-separation may militate against a finding that the recipient should share in the increase.
  11. Where the payor’s post-separation advancement is related primarily to luck or connections which he made on his own, rather than on contributions from the recipient, the recipient’s claim will be more difficult.
  12. 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 increase.
  13. Evidence that the payor has contributed to the recipient’s own career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency may preclude an award that takes into account post-separation increases.

This case, and the principles set out, are frequently referred to in cases determining this issue.