Post-Separation Increases in Payor Income and Spousal Support

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Court Hearings and Proceedings, Marriage, Trials, Legal Studies, Marital Separation, Careers, Alimony


In 2016, Brian Burke and Joanna Hunt wrote a very helpful article on the subject in the Canadian Family Law Quarterly.1 Why so much litigation? Because most recipients (and their lawyers) can understand that, if they can make the payor's income go up, the SSAG range can be increased, and maybe spousal support too. [...]the resolution of this issue - like so many others under the SSAG - reflects our understanding of the law of spousal support entitlement.2 To date, judges (and lawyers) who understand compensatory support get the post-separation analysis right and find the requisite "link" for full or substantial sharing. The Court of Appeal held that the husband's post-separation income increase had been properly shared, given the compensatory foundation of the support order and the lower court's finding of "a causal link between her relative disadvantage and the marriage".5 Tranmer J. had described the $12,000 a month support as "just below the low end of the [SSAG] range" on their higher 2016 incomes, $632,827 for him and $110,114 for her, both up from their 2008 incomes of $414,664 and $76,115.6 By the date of termination, the compensatory entitlement would no longer exist. [...]on the basis of the evidence, I do not find that the Respondent has made the type of sacrifices that the courts have required in order to justify such an award.14 On appeal, this ruling was upheld, even though "the reasons leave much to be desired".15 Again, there was an explicit appellate reference to the motions judge's use of the principles in Thompson, but nothing more.16 From the skimpy reasons at both levels, we might surmise a weaker compensatory claim, and it was a delayed request for increased retroactive and prospective spousal support.17 Even if the outcome might be right on the merits, more analysis was warranted at both levels of court.