Family Law Principles that we can learn from Thompson v. Thompson 2013 ONSC 5500 (Post Separation Increases in a Payor’s Income)
Determining spousal support in cases involving post-separation income increases is complex and challenging.
Typically the recipient spouse (receives spousal support spouse)) seeks to benefit from any increase in the payor's (paying spousal support spouse) income since the parties' separation. However, this position raises difficult questions about the timing of income determination in spousal support cases and the circumstances under which a recipient spouse should be allowed to benefit from the payor’s post-separation income increases.
Two Ontario Court of Appeal cases are used to shed light on this issue. In the first, Marinangeli v. Marinangeli, the court found that the recipient spouse is entitled to maintain the standard of living they were accustomed to when cohabitation ceased. There's also a precedent that a spouse is entitled to an increase in the standard of living that would have occurred in the normal course of cohabitation. However, courts must avoid redistributing the payor’s capital in the guise of support.
On the contrary, in Fisher v. Fisher, the court did not consider the payor spouse’s post-separation income in determining the spousal support claim. Here, the incomes of the spouses during the three years prior to separation and in the year of separation were averaged out. These two cases provide a backdrop against which to analyse the issue of post-separation increases in a payor’s income.
The authors of the Spousal Support Advisory Guidelines (SSAG) and subsequent cases have established that the treatment of post-separation increases in a payor’s earnings in spousal support cases is ultimately at the court's discretion. This is done considering the unique circumstances of each case and the general factors and objectives underlying spousal support.
Thus, some general principles guide and inform the court’s exercise of discretion on this issue. A spouse is not automatically entitled to increased spousal support when the other spouse’s post–separation income increases. The right to share in post-separation income increases typically does not arise in non-compensatory claims. However, compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances.
Moreover, the court also takes into account the duration of the relationship, the level of integration of the parties’ personal and financial affairs, and whether the recipient spouse made significant and long-standing sacrifices and contributions that benefited the payor.
The court also considers whether 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 family's sake.
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