Short Answer....Sometimes. It's not automatic like child support, so entitlement for post separation adjustments with increased salary of the payor must be argued to the court. It will depend on length of the marriage, when the increase happened post separation, and did during the course of the marriage were certifications obtained that contributed to the pay increase.
Entitlement to spousal support must be established before the court considers the quantum and duration of any spousal support award to be paid. Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para 49.
There is a limited factor that can override spousal support. Everyone has a "bucket" of disposable income available for support purposes. Child support has first rights to that bucket. A marriage with one child may draw an amount of support from that bucket and still have some left over for spousal support purposes. Without children that child support amount may be larger than what it would be with children. However, a marriage with 3 children and the same moderate salaries in play as the family with one child, after drawing child support out of that bucket, there may not be any left over for spousal support.
In determining one’s entitlement to spousal support, the court is to consider the objectives
of spousal support set out in s.15.2(6) of the Divorce Act:
Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
Relieve any economic hardship of the spouses arising from the breakdown of the marriage, and
In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
All four objectives are to be considered, with no one objective being paramount: Moge v.
Moge, [1991] 3 S.C.R. 813, at p. 852.
Moge and Bracklow set out the following examples of compensatory support:
A spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:
A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;
A spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities; and
A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons.
A spouse has contributed financially either directly or indirectly to assist the other
spouse in his or her education or career development.
Spousal support can be drawn down into two categories, compensatory and needs based. And a support claim often contains both elements.
Needs based, in laymen's terms, might be where one party is unable to work for some reason (medical, age, etc). When establishing a needs based approach, the Court is also guided by the principle that the support should allow the recipient the standard of living with which they were accustomed at the time when cohabitation ceased. See MacDougall v. MacDougall (1973), 1973 CanLII 1940 (ON SC), 11 R.F.L. 266, 1973 CarswellOnt 130 (Ont. S.C.) per Henry, J. See also Linton v. Linton (1990) 1990 CanLII 2597 (ON CA), 1 O.R. 3d 1 (Ont. C.A.). At the same time the court must guard against redistributing the payor’s capital in the guise of support. A mainly needs based spousal support claim does not promote post separation adjustments.
While a compensatory claim may be when one party sacrificed a career, like to stay home with the children so the other could advance theirs. A strong compensatory claim may be a factor that favours a spousal support award at the higher end of the ranges both in terms of quantum and duration. By contrast, a weaker compensatory claim, where the economic advantage or disadvantage to one of the spouses is limited in duration or effect, may militate in favour of a lower amount of spousal support and/or a shorter duration; Bracklow; Midgley v. Midgley, 2001 CarswellBC 2009 (C.A.). Other factors such as age, children, property division, self sufficiency incentives, and ability to pay come into play as well. A strong compensatory claim does promote post separation adjustments.
Once you've established that spousal support is appropriate, there remains the question on if the payor's salary increases, should spousal support increase with it as well.
Where a payor experiences a post-separation income increase, there is no question that the child support shares fully in any increased income under the CSG. The same, however, cannot be said for spousal support, given the threshold entitlement question of whether the recipient spouse should share none, some or all of the payor’s income in income. A court can find that child support should increase, but not spousal support under the SSAGs: Sarophim v. Sarophim, 2010 BCSC 216
Section 14.3 of the SSAGs, specifically addresses post separation income increase:
Some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should, by how much. It all depends on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job vs. promotion with same employer, or career continuation vs. new venture).
These are the factors to be considered when deciding on post separation adjustment:
DISCRETIONARY: SSAG and caselaw makes it discretionary to the Judge to decide on how to deal with post separation adjustments.
NOT AUTOMATIC: A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases; Dextrase v. Dextrase, 2004 BCSC 215 (CanLII), [2004] B.C.J. NO. 266 (S.C.); Hariram v. Hariram, 2001 CanLII 32749 (ON SCDC), 2001 CarswellOnt 732 (Div. Ct.).
NOT NEEDS BASED: The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship; A.A.M. v. R.P.K. 2010 ONSC 930 (CanLII), [2010] O.J. No. 807 (S.C.), where Pazaratz, J. cited Phillip Epstein on this issue from his annotation on Fisher v. Fisher.
COMPENSATORY BASED: Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income; A.A.M. v. R.P.K., Ibid.; Keast v. Keast, 1986 CanLII 6323 (ON SC), 1986 CarswellOnt 257 (Dist. Ct.); Ferguson v. Ferguson, 2008 CarswellOnt 1676 (S.C.); Fletcher v. Fletcher, 2003 ABQB 890 (Q.B.).
CONTRIBUTED TO OTHERS SUCCESS: The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case; Marinangeli v. Marinangeli, Supra.; A.A.M. v. R.P.K., Supra., Judd v. Judd, 2010 CarswellBC 246 (S.C.).
LONG TERM MARRIAGE: A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant; Hartshorne v. Hartshorne, 2009 BCSC 698 (CanLII), 2009 70 R.F.L. (6th) 106 (B.C.S.C.), rev’d in part 2010 CarswellBC 1618 (C.A.); Farnum v. Farnum, 2010 CarswellOnt 6917 (O.C.J.). When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation.
MARRIAGE FAVOURED ONE CAREER: In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in 2024 ONSC 17 (CanLII) 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: Hartshorne v. Hartshorne, Ibid.; Sawchuk v. Sawchuk, 2010 CarswellAlta 32 (Q.B.), Judd v. Judd, Ibid.
SKILLS ACQUIRED DURING MARRIAGE: If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases; Judd v. Judd, Supra.
NOT IF SKILLSET CAME AFTER SEPARATION: By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period; Judd v. Judd, Supra.
JUST BEING HOMEMAKER IS NOT ENOUGH: Assuming primary responsibility for childcare and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases; Sawchuk v. Sawchuk, Supra.
DIDN'T CHANGE OF CAREER/EMPLOYER POST SEPARATION: Evidence that the post-separation income increase has evolved as a result of a different type of 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 which the payor has made since the separation may militate against a finding that the recipient should share in the increase; Hartshorne v. Hartshorne, Supra.; Chalifoux v. Chalifoux, 2006 ABQB 535, rev’d on other grounds 2008 ABCA 70 (C.A.); C. (D.B.) v. W. (R.M.), 2006 CarswellAlta 1723 (Q.B.); Kelly v. Kelly, 2007 BCSC 227 (S.C.); Rozen v. Rozen, 2003 BCSC 973 (S.C.).
LUCK NOT INVOLVED: Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult; Hartshorne v. Hartshorne, Supra.; Fletcher v. Fletcher, 2003 ABQB 890 (Q. B.); Robinson v. Robinson, 1993 CarswellOnt 349 (C.A.).
TIMING IS A FACTOR: 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 income increases; Bryant v. Gordon, 2007 BCSC 946 (S.C.).
DID PAYOR HELP CONTRIBUTE TO RECIPIENT'S CAREER AND SELF-SUFFICIENCY: Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account 2024 ONSC 17 (CanLII)Page: 34 post separation income increases; Bryant v. Gordon, Ibid.; Kelly v. Kelly, Supra.; Walsh v. Walsh (2006), 2006 CanLII 20857 (ON SC), 29 R.F.L. (6th) 164 (Ont. S.C.J.).
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