Following a separation, a person may owe their former partner spousal support in order to ensure that both parties are able to enjoy a quality of life similar to that they enjoyed prior to their separation. However, people’s lives are rarely static and circumstances can change quickly and without warning. What happens to spousal support when the paying party experiences an increase in income? This was recently discussed in a decision from the Ontario Superior Court of Justice.

Competing motions

The couple began living together in 1985. They were married in 1996 and separated in 2009. They raised four children while married, all of whom are now adults. The wife worked out of the home and was the primary caregiver for the children during the first 15-16 years of the relationship, and took on limited employment for the last 8-9 years of the marriage.

The parties executed a separation agreement in 2009 which included language for review of spousal support and an exchange of financial materials. They signed an updated version in 2011, and spousal support varied as their income changed over the years.

In 2017 the husband took a buyout of his pension, which resulted in a payment of $1.4 million. Some of it was placed into a locked-in retirement vehicle, but some was paid to him in case. For the first half of 2017 the husband had been paying $2,900 per month in spousal support. He reduced that amount unilaterally to $2,000 in June of that year. By January, 2018 he had begun to pay only $1,400 per month. Finally, he applied on May 1, 2018 to have spousal support terminated. One month later the wife applied for an increase in spousal support.

Should spousal support be terminated?

The first question analyzed by the court was whether spousal support should be terminated. The court was quick to state, no, it should not be. The parties were involved in a long-term relationship that saw the wife take on the role of primary caregiver for their children. Her decision to do so allowed the husband to be successful in his career. The court wrote,

“It is undisputed that (the wife’s) spousal support entitlement is significantly compensatory in nature and while her situation has improved, the compensatory element of her claim remains strong. Spousal support has simply not continued long enough or in a way that has ameliorated the impact of the relationship and separation between these parties.”

The court also addressed whether the separation agreement entered into by the parties should be disregarded. The court found it should not be, stating they had followed the agreement up until the issues at trial arose. The court stated, “It would be inequitable to ignore the contract now given the length of time the parties were together, the roles that they chose and planned for themselves during their relationship and the effects of those choices both before and after the separation on them both.”

What about the husband’s success post-separation?

The court was not convinced with the husband’s argument that his post-separation increase in income should not be considered for the purposes of spousal support. The court found the husband’s argument to be “completely divorced from the reality of the choices these parties made between them for their family over a very long period of time.  This includes the periods after separation when both parties “post-separation” financial realities were considered in their agreed changes to the contract between them.”

At Borden Family Law, we have been advising clients on spousal support and related matters for 17 years. Our practice is focused solely on family law, and over the years we have built a strong base of knowledge and experience in the nuances and specificities of separation, divorce, and related matters such as support issues. We rely on this focused experience to provide exceptional guidance to clients seeking assistance following the breakdown of their relationship. We serve clients in Oshawa, Ajax, Pickering, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905-576-6090 or contact us online.