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Epstein’s This Week in Family Law | Post-Separation Income Increases

Epstein’s This Week in Family Law | Post-Separation Income Increases

Increase to spousal support declined despite significant post-separation income increases in recent ONCA decision



Epstein’s This Week in Family Law



Philip Epstein

Post Separation Increase in Income - Lack of Entitlement

Hersey v. Hersey, 2016 CarswellOnt 9673 (Ont. C.A.) - Cronk, Blair and MacFarland JJ.A. This brief decision of the Ontario Court of Appeal dismisses an appeal by the wife from a trial judgment that declined to increase her spousal support to take into account the significant increases in income after the parties had separated.

The Court of Appeal was at pains to point out that the reasons of the motions court judge barely met the threshold for appropriate appellate review. Nevertheless, the reasons were sufficient for the Court and the parties to understand why the judge did what she did.

The child support had come to an end and the wife argued that that factor coupled with the husband’s significant increase of income and her significant health issues should mandate a substantial increase in spousal support and a retroactive one at that. The motions court judge saw it differently and declined an award in favour of the wife and the Court of Appeal agreed. The motions court judge was aware of the basis of the wife’s claims, but relied on the principle summarised in Thompson v. Thompson, 2013 CarswellOnt 12392 (Ont. S.C.J.), which I have often repeated in the Newsletter. As the Court of Appeal notes:

She concluded on the evidence before her that the appellant failed to establish a right to share in the respondent’s post-separation income increases. She found that the careers of the parties were established prior to the marriage. The appellant was a teacher and the respondent, a lawyer. There had been no significant changes in the careers of either. The evidence about child care responsibilities during the marriage was conflicting She concluded that the appellant had not made the sorts of sacrifices that the courts have required to justify an award for increased compensatory support. Accordingly, she concluded that spousal support should be calculated on the basis of the parties’ incomes as at the date of separation.

This statement reiterates the current case law about whether separated spouses will share in the post separation increases in income. Generally speaking, a recipient dependent spouse will not share in post separation increases in income unless there is a compensatory element to the claim. A needs-based claim without the compensatory element will not entitle a dependent spouse to increases in spousal support when the payor’s income increases.

The husband cross-appealed because he was denied costs below, even though he was the successful party. The Court of Appeal was of the view that the motions court judge had properly instructed herself on the issue of costs and they would not interfere. Thus, the Court dismissed both the appeal and cross-appeal, each with costs.

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