Spousal Support: Post-Separation Increases In Income

April 14, 2016
Leisha Murphy

You have been working hard and finally obtained that promotion, which includes a significant pay raise. Your talents and hard work have paid off.

In the midst of merriment and celebration, an unsettling skeleton appears from your past: your ex-spouse is eyeing your increase in pay and wondering whether s/he is entitled to a bump in spousal support.

Is s/he?

First, a court would have to confirm that there has been a change in the conditions, means, needs or other circumstances of either you or your spouse since the spousal support order was made or last varied.

Second, the court would have to find that the recipient spouse (i.e. the spouse receiving spousal support) contributed to the paying spouse’s post-separation increase in income. The recipient spouse would have to show that s/he contributed to the paying spouse’s skills or to the credentials s/he acquired during the relationship that led to the increased income.

1) A change in circumstances

Our court has determined that a significant increase in a paying spouse’s income is a material change.

2) Contribution to post-separation increase in income

The principle that emerges from the case law is that the recipient spouse is not entitled to spousal support based on the paying spouse’s increased post-separation income unless the recipient spouse can demonstrate a significant and direct contribution to the paying spouse’s ability to earn that income. This requires the court to identify the underlying reason for the paying spouse’s increased income, and then determine whether the recipient spouse contributed to those factors that gave rise to the increase.

In the Alberta case of O’Grady v. O’Grady, the paying husband was a “workaholic” who was able to increase his income after separation by taking a new position and continuing to work very hard, which resulted in him significantly increasing his annual income. The Alberta Court of Appeal in O’Grady commented that “while this was a long-term marriage and the respondent [wife] bore primary responsibility for raising the children, it does not automatically follow that the respondent [wife] should therefore be entitled to take advantage of her former husband’s work ethic.”

Conclusion

Generally, unless spouses agree that spousal support should be reviewed in the future using the payor’s increased income, or there are other circumstances linking the recipient spouse’s role in the relationship to the paying spouse’s increased income, increased income should not be used to alter a final spousal support order or agreement post-separation/divorce.

Leisha Murphy
Leisha Murphy
Partner (Vancouver)
Connect Family Law

Leisha has practised exclusively in the area of family law since being called to the British Columbia Bar in 2010. Before opening Connect Family Law in 2015, she practiced in the family law group of a leading British Columbia law firm.