MEMO TO:
Doble & Doble LLP
RESEARCH ID:
#40002720e416b0
JURISDICTION:
Ontario, Canada
ANSWERED ON:
December 8, 2020
CLASSIFICATION:
Family law

Issue:

In Ontario, in instances in which there are post-separation increases in income, when do such post-separation increases in payor income result in increases of spousal support to support recipients and when do they not?

Facts:

The parties were married for 17 years and separated in 2013. The 3 children are now all in undergraduate courses at 3 universities. Oldest child started life with father in mid-April 2020.

Mother had a career as a teacher which she gave up for the 3 kids. However, she was keen to move from BC (where the parties met and initially worked) to move to Ontario as this is where her siblings and parents reside. Father got a better paying job as a physician but left his family behind in Western Canada. Mother was offered a high school job in 2010 but declined despite Father’s encouragement. Mother was told September 30/14 by a Case Conference judge she had to do her best to become self-supporting. Instead she spent most of the past 7 years doing either nothing or getting a third BA (this one in psychology). A Masters degree would have taken less time and improved her salary as a teacher. She is now doing substitute teacher and tutoring work at less than $20,000/year. The June 2015 Order states that she is to be imputed at minimally $50,000/year income currently.

Conclusion:

The payee spouse is not automatically entitled to increased spousal support based on a payor's post-separation increase in income. (Choquette v. Choquette; Patton-Casse v. Casse; Carr v Condon; Kinsella v. Mills).

The determination of whether there should be any sharing of income increases must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation. (Kinsella v. Mills).

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 in the standard of living during the relationship. (Thompson v. Thompson).

Regardless of whether the entitlement to spousal support is compensatory or non-compensatory, the needs of the payee spouse is a very important part of the spousal support analysis and may support a sharing of post-separation income increases in purely needs-based claims in appropriate circumstances. For instance, a long term relationship involving financial dependence by the recipient spouse coupled with evidence of significant ongoing need may support sharing of post-separation income increases. Even in shorter or mid-length relationships, a strong non-compensatory claim based on factors such as illness, disability or other considerations may support some sharing of income increases to ease the transition to a new post-separation reality. (Kinsella v. Mills).

The existence of a compensatory element to a support claim is an important factor in determining entitlement to share in post-separation increases in income. Specifically, the court has considered the length of the relationship, the extent of the recipient’s contributions and sacrifices both during the relationship and post-separation and the duration of time during which those efforts and sacrifices were made. (Helle v. Helle; Hartshorne v. Hartshorne; Kinsella v. Mills).

The child care arrangement post-separation is an important factor. Where the payor has primary care or shared care of the children post-separation, the courts have found that this is a factor against a finding of compensatory entitlement to post-separation spousal support increases. (Colautti v. Eggett; T.N.F. v M.J.V.A.).

In compensatory cases, evidence that the knowledge, skills, expertise, credentials and/or connections that enabled the payor to increase their income following the separation were acquired and developed during the relationship is a factor that will favour sharing of post-separation income increases. (B.S. v. B.W.; Nieuwenhuysen v. Nieuwenhuysen; Hamilton v. Saint Denis; Hartshorne v. Hartshorne; Kinsella v. Mills).

Courts will consider evidence that the payee spouse has not taken reasonable steps to achieve self-sufficiency post-separation. (Choquette v. Choquette; Kozak v. Kozak; Kinsella v. Mills).

However, in Kinsella v. Mills, Chappel J. cautions that shortcomings in a payee's failure to take reasonable steps to achieve self-sufficiency should be factored in either by imputing income to the payee or not sharing post-separation increases in the payor's income. It is not appropriate to consider the issue from both lines of analysis. (Kinsella v. Mills).

In Choquette v. Choquette, the payee spouse asked for increased spousal support based on post-separation increases in income. The payee did not obtain self-sufficiency during the 22 years of receiving spousal support. The Court did not increase spousal support because the payee was not prevented from immediately and fully re-entering the workplace and therefore becoming self-sufficient. (Choquette v. Choquette).

In Hamilton v. Saint Denis, the judge considered whether the payee spouse took reasonable steps towards obtaining self-sufficiency. The payee's imputed income equalled the amount that she could be reasonably capable of earning. The court ultimately awarded spousal support based on the payor spouse's post-separation income. (Hamilton v. Saint Denis).

In Kozak v. Kozak, the payee spouse's failure to take any steps towards achieving self-sufficiency was a factor that weighed against the court taking into account post-separation increases. (Kozak v. Kozak).

Law:

In Thompson v. Thompson, 2013 ONSC 5500 (CanLII), Chappel J. summarized the principles of the treatment of post-separation increases in a payor's earnings when determining the quantum of spousal support:

[103] The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor’s earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court’s exercise of discretion on this issue:

a) A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases.[106]

b) 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.[107]

c) 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.[108]

d) 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.[109]

e) 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.[110] 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.

f) 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 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.[111]

g) 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.[112]

h) 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.[113]

i) Assuming primary responsibility for child care 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.[114]

j) 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.[115]

k) 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.[116]

l) 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.[117]

m) 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 post separation income increases.[118]

In Kinsella v. Mills, 2020 ONSC 4785 (CanLII), Chappel J. provided the following comprehensive summary on the treatment of post-separation income increases when calculating spousal support, refining her summary from Thompson v. Thompson, 2013 ONSC 5500 (CanLII).

1. A recipient spouse is not automatically entitled to increased spousal support based on a payor spouse’s post-separation increase in income (Patton-Casse v. Casse, 2012 ONCA 709 (C.A.), at paras, 26-27; Carr v. Condon, 2017 ONSC 173 (S.C.J.), aff’d 2018 ONCA 509 (C.A.); Choquette v. Choquette, 2018 ONSC 1435 (S.C.J.), aff’d 2019 ONCA 306 (C.A.)).

2. The question of whether there should be a sharing of post-separation income increases is not an “all or nothing” matter. Partial sharing of such increases, and/ or sharing for a specified period of time, are issues that the court should also consider when the issue arises (Fisher, at para. 89; Frank; Helle v. Helle, 2019 BCCA 97 (C.A), at para. 38).

3. The determination of whether there should be any sharing of income increases, and if so the extent of any such sharing, must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation. Accordingly, in a proceeding governed by the Divorce Act, the factors and objectives outlined in section 15.2(4) and (6) must inform the overall analysis (Frank, at para. 111).

4. The basis of a spouse’s entitlement to spousal support is an important consideration. In both compensatory and non-compensatory cases, the court’s assessment of the needs of the recipient and ability of the payor spouse to pay are significant factors that should inform the court’s analysis regarding sharing of post-separation income increases (Hartshorne v. Hartshorne, 2010 BCCA 327 (C.A.), at para. 56 (“Hartshorne 2010”). However, in cases involving non-compensatory claims, the focus tends to be on maintaining a reasonable standard of living as measured by the standard enjoyed during the relationship, and this is a factor which may impact the decision as to whether a recipient should benefit from the payor’s post-separation income increases (A.A.M. v. R.P.K., 2010 ONSC 930 (S.C.J.); Kohan v. Kohan, 2016 ABCA 125 (C.A.); T.N.F. v. M.V.J.A., 2018 ONSC 3310 (S.C.J.)). Nonetheless, the circumstances of each case must be carefully considered to ensure a just outcome, having regard for all of the objectives and factors outlined in the relevant legislation. The needs of the recipient spouse are always a very important part of the spousal support analysis and may support a sharing of post-separate income increases in in purely needs-based claims in appropriate circumstances. For instance, a long-term relationship involving financial dependence by the recipient spouse coupled with evidence of significant ongoing need may support sharing of post-separation income increases. Even in shorter or mid-length relationships, a strong non-compensatory claim based on factors such as illness, disability or other considerations may support some sharing of income increases to ease the transition to a new post-separation reality.

5. The existence of a compensatory element to a support claim is an important factor in determining entitlement to share in post-separation increases in income (Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.); Horner; Ludmer; Beninger v. Beninger, 2009 BCCA 458 (C.A.); Shukalkin v. Shukalkin, 2012 ABCA 274 (C.A.); Remillard v .Remillard, 2014 MBCA 101 (C.A.); Dancy; Lazare v. Heitner, 2018 ONSC 3604 (S.C.J.)). In addressing this factor, the court must keep in mind the various different indicia of compensatory entitlement and not simply the assumption of child care and home management responsibilities. In these cases, the general strength of the compensatory claim is an important factor. The analysis should therefore include consideration of the length of the relationship, the extent of the recipient’s contributions and sacrifices both during the relationship and post-separation and the duration of time during which those efforts and sacrifices were made (Hartshorne 2010; Kohan; Dancy; Helle).

6. Another important consideration in compensatory situations is whether the recipient’s efforts and contributions during and after the relationship contributed to the payor’s financial advancement during the relationship and post-separation (Marinangeli; Hartshorne; Kohan; Dancy; Patton-Casse; Hersey v. Hersey, 2016 ONCA 494 (C.A.)). As the British Columbia Court of Appeal held in Helle, at para. 39, the court should consider the extent to which the payor ended up in favourable circumstances as a result of the joint enterprise of the relationship. Evidence that the recipient’s sacrifices and contributions during the relationship supported the payor’s financial progression post-separation will typically support a sharing of post- separation income and a higher amount of such sharing. In assessing whether and to what extent the recipient’s efforts contributed to the payor’s ability to advance financially, the court must maintain a broad perspective of the various means by which a spouse’s contributions and sacrifices can support the other spouse’s success both in the short and long-term, including for example assuming primary responsibility for home- management matters, taking on primary child care responsibilities during and/or after the relationship ended, assisting in the establishment and operation of the payor’s business or subordinating their career to that of the payor so that the payor could focus on the development of their skills and career (Hartshorne 2010; Helle, at para. 40; Cameron v. Cameron, 2018 ONSC 2456 (S.C.J.); Fox v. Fox, 2017 ONSC 6509 (S.C.J.); Easton v. Coxhead, 2018 ONSC 4784 (S.C.J.)).

7. The fact that the recipient spouse has continued to be a primary caregiver for the children post-separation is a factor that supports a sharing of post- separation income increases, since this often allows the payor to continue to focus on their career advancement. On the other hand, the fact that the payor has primary care or shared care of children post-separation may also be relevant to whether sharing of such increases is appropriate, and the amount of any such sharing (Colautti v. Eggett, 2019 ONSC 2064 (S.C.J.); T.N.F.; Mahoney v. Tanner, 2016 ONSC 7082 (S.C.J.); Lazare).

8. The sharing of post-separation income increases is not necessarily dependent on the recipient spouse having sacrificed their own career advancement during the relationship for the benefit of the payor spouse’s progression in their career (Horner; Helle, at para. 37). However, evidence that they did so is a further factor that may support a sharing of the increases (Cameron; Hamilton v. St. Denis, 2019 ONSC 2766 (S.C.J)).

9. In compensatory cases, evidence that the knowledge, skills, expertise, credentials and/or connections that enabled the payor to increase their income following the separation were acquired and developed during the relationship is a factor that will favour sharing of post-separation income increases (Hartshorne 2010; Fletcher v. Fletcher, 2003 ABQB 890 (Q.B.); Judd v. Judd, 2010 BCSC 153 (S.C.); Kohan; Easton; Fox; Nieuwenhuysen v. Nieuwenhuysen, 2019 ONSC 4775 (S.C.J); B.S. v. B.W., 2019 ONSC 2769 (S.C.J.); Hamilton).

10. The courts often consider the length of time that has passed from the separation until the increase in income occurred. The closer the temporal link, the more likely it is that the court will find that the recipient’s efforts supported the other party’s post-separation financial success (Hartshorne 2010; Bryant v. Gordon, 2007 BCSC 946 (S.C.); Kohan; Nieuwenhuysen; Hamilton; Kozak v. Kozak, 2018 ONSC 690 (S.C.J.)).

11. Another important consideration is whether there were any changes in the payor’s career post-separation that explain the increase in income, such as a new job, position or business reorganization. However, in these circumstances, the court must still consider whether the change in position was attributable to the knowledge, skills and experience that the payor had acquired during the relationship with the support of the recipient’s efforts (Hartshorne; Chapman v. Chapman, 2009 CarswellOnt 8915 (S.C.J.); Patton-Casse; Mulick v. Mulick, 2012 ABQB 592 (Q.B.); Reid v. Gillingham, 2014 NBQB 79 (Q.B.), aff’d 2015 CarswellNB 176 (N.B.C.A.), leave to appeal refused 2015 CarswellNB 442 (S.C.C.); Tscherner v. Farrell, 2014 ONSC 975 (S.C.J)).

12. The courts also consider whether the increase in income is primarily attributable to the payor’s decision following the separation to increase their work effort through means such as working more overtime, accepting work that is more lucrative but involves significant personal sacrifices or taking on extra jobs. These types of circumstances may support no sharing, or only partial sharing, of income increases following the termination of the relationship (Chalifoux, at paras. 25-26; Tscherner; Black v. Black, 2015 NBCA 63 (C.A.); Mahoney v. Tanner, 2016 ONSC 7082 (S.C.J.); Kozak).

13. Evidence that the increased income was attributable to specific, unusual events following the separation, such as unexpected changes in market conditions, is a factor that may weaken a claim to share in the increase (Kohan).

14. Evidence that the recipient spouse has not taken reasonable steps towards achieving self-sufficiency is another factor that courts have considered in determining whether there should be a sharing of post-separation income increases, and if so, the extent of any such sharing (Bryant; Kelly v. Kelly, 2007 BCSC 227 (S.C.); Kohan; Choquette, at para. 25; Kozak; Lazare). In such situations, the shortcomings in the recipient’s self-sufficiency efforts will also be relevant to determining whether income should be imputed to them, but it is not inappropriate to consider the issue from both lines of analysis.

15. Evidence that the payor has also made contributions to the recipient’s career advancement post-separation will also be relevant (Bryant, at para. 56; Kohan).

In Fisher v. Fisher, 2008 ONCA 11 (CanLII), in the year of separation, the husband's income started to increase significantly. The Ontario Court of Appeal ordered some sharing of the husband's post-separation income increase. Lang J.A. used a four-year average, including one-year post-separation, to calculate the payor's income. The reason behind the use of post-separation increase in income was not explained:

[89] To achieve an equitable result regarding the amount of support, I have averaged the parties' incomes for the last years. In the respondent's case, I use his increasing income in the three years prior to separation, as well as his substantially increased income in the year of separation, [See Note 19 below] even though it was largely received post-separation. This results in an average salary for the respondent of $89,825, which allows for the parties' expectation that they would have shared those increases but for the separation.

In Patton-Casse v. Casse, 2012 ONCA 709 (CanLII), the Court of Appeal held that a recipient spouse is not automatically entitled to increased spousal support based on a payor spouses' post-separation increase in income:

[26] In our view, it was open to the appeal judge to intervene. As he pointed out, in spite of evidence before him that Casse’s post-separation income was attributable to effectively new employment, the arbitrator failed to consider, as he should have, the question of what part of Casse’s post-2005 period was disconnected from Patton’s efforts during the marriage. The appeal judge put it this way: “His failure to do so is a reviewable error, as post-separation increases in income have to at least be analyzed in order to determine whether they are related to the marriage: see the annotation by James G. MacLeod to Rozen v. Rozen, 2003 Carswell B.C. 1564 (C.A.) where in the author states”:

Automatically sharing post-separation increases in income as akin to treating a job as if it were a family asset, shareable in specie. Rather than doing so as a matter of course, courts should investigate whether there is sufficient relationship between the increased income and the payee’s efforts during marriage to justify allowing him or her to share in the increase.

[27] Given this conclusion, we are satisfied it was open to the appeal judge to consider anew the issue of the amount of prospective spousal support and the duration of that support. We see no error in his reasoning with respect to the conclusions that he reached.

In Carr v Condon, 2017 ONSC 173 (CanLII), affirmed in Carr v. Condon, 2018 ONCA 509 (CanLII), the payee sought to vary the spousal support payable to her under a court order on the basis that the significant increase in the payor spouse's income was a material change. Sweeny J. found that the increase in income did represent a material change.

[23] In examining the spousal support in the context of post-separation increases in payor income, at page 83, the authors of the User’s Guide write:

The basis of entitlement has a significant impact upon the degree of sharing of increases, with compensatory claims more likely to result in sharing than non-compensatory claims, but not exclusively so. There can be a sharing – partial, or even full – in non-compensatory cases too, especially after long marriages.

Sweeny J. first considered whether the payee was entitled to an increase in spousal support for compensatory reasons. Sweeny J. found that there was an insufficient link or connection between the payee's contribution to the payor and his increased income:

[26] In Beneteau v. Young, 2009 CanLII 40312 (Ont. S.C.J.), the court set out three types of compensatory support:

i. Non-specific compensatory support (where a spouse’s ability to achieve self-sufficiency was comprised by career/job dislocation for the family);

ii. Specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or the roles adopted in marriage); and

iii. Specific calculable and advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the other spouse).

In this case, it is my understanding that the Applicant does not assert she is entitled to compensatory support on the basis that she gave up a career in order to stay home and care for the children. The Applicant acknowledges that any career she could have had would not have generated anywhere near the income which the Respondent’s has generated and generates. Her claim for compensatory support is based on the fact that she took on increased domestic responsibilities to enable the Respondent to pursue his career. The statutory basis for compensatory support is found in ss. 15.2(6)(a) and (b), and ss. 17(7)(a) and (b) of the Divorce Act.

[27] The main issue from the Applicant’s perspective is her entitlement to share in the increased income of the Respondent. On a compensatory basis to entitlement, there need not be a direct causal connection between the post-separation income increase and the contributions during the marriage by the recipient spouse; however, there must be some link or connection. In this case, the Respondent had completed his business course at the Ivey School of Business prior to marriage. He had an executive position with PepsiCo before the marriage. Over the course of the marriage, he continued to work in executive positions. The Applicant spoke of attending certain corporate events. The parties agree that there were moves for the Respondent’s work. These moves might be relevant to a claim that the Applicant could not advance in her career and suffered her own personal career setbacks as a result of them. However, in my view, these moves alone do not establish entitlement to compensatory support.

[28] As L’Heureux-Dubé J. noted in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, 99 D.L.R. (4th) 456, at para. 84:

A spouse may contribute to the operation of a business, typically through the provision of secretarial, entertainment or bookkeeping services, or may take on increased domestic and financial responsibilities to enable the other to pursue licenses, degrees or other training and education. To the extent that these activities have not already been compensated for pursuant to the division of assets, they are factors that should be considered in granting spousal support.

[29] In this case, the economic benefit of the relationship has been shared by the division of family assets. The economic benefits to the Applicant were significant. The Applicant’s contributions toward child care and maintaining the home during the course of the marriage have been compensated to some extent by the division of family assets. The significant net family property was generated as a result of the parties’ economic union and lifestyle.

[30] The contributions referred to in Moge are not present in this case. There was no assistance in the operation of a business or the establishment of a business. There was no significant education undertaken by the Respondent at the expense of the Applicant. He took some short courses, but that is not sufficient to establish this basis for compensatory support.

[31] This was a traditional marriage, where the Applicant did not work outside the home. She provided care for the children when they were younger and continued to provide assistance to the children while they attended their private schools. This provided time for the Respondent to continue to pursue his career. However, there was no substantial career enhancement conferred by the Applicant on the Respondent.

[32] The Respondent was fired from his employer of 18 years. He found a new job by answering an advertisement. He relocated across Canada to secure employment. This was a different field, the not-for-profit industry as opposed to the for-profit industry. His present position in the United States was gained as a result of his exposure in this new field. The nature of the Respondent’s employment has changed. He has relocated to the United States. This new position in a new country occurs six years after separation. I find the Applicant is not entitled to share significantly in the Respondent’s increase in income.

[33] The significant income that the Respondent earned and now earns is a factor which I consider in exercising my discretion. The Respondent’s income had dropped significantly from historical levels prior to the mediation and the Order. To the extent that post-separation increases rise to the historical average income prior to separation, I consider these increases in determining appropriate spousal support.

Secondly, Sweeny J. considered whether the payee was entitled to non-compensatory support. As the spouses, when married, maintained a relatively comfortable, but not extravagant, standard of living, the payee did not establish entitlement to the payor's post-separation increase in income:

[34] An entitlement to non-compensatory support is predicated on need. It finds its basis in ss. 15.2(6)(a) and (b), and ss. 17(7)(c) and (d) of the Divorce Act. In the majority of cases, the issue to be addressed is a significant discrepancy in the standards of living which is experienced by spouses post-separation. In the normal course, the lower-income spouse experiences a significant drop in standard of living after the marriage breakdown.

[35] The parties’ standard of living is relevant to support entitlements (see Moge, at para. 85). The parties’ lifestyle during the marriage was comfortable and active but not extravagant. The Applicant testified as to the frugal nature of the Respondent. The parties each drove nice cars: the Applicant drove a Honda Pilot, and the Respondent, a Lexus ES300. These are not lavish vehicles. The parties financially assisted both sets of parents. However, that assistance was not particularly substantial. The family went on vacations but not extravagant ones; for example, a trip to Florida was an annual occurrence. The parties lived in a nice home in Fonthill which had a value of approximately $450,000 on the date of separation.

[36] Insight into the standard of living the parties experienced during the course of the marriage is gained by a review of the financial statements prepared by the parties in the context of the initial application. The Applicant’s financial statement, sworn May 4, 2009, shows actual expenses in the range of $15,000 per month (exclusive of child-related expenses including tuition and income tax deductions). This would amount to approximately $26,000 before tax. At that time, the Applicant claimed $4,000 per month for vacations, which was very high given the parties’ history of vacations during the marriage. The Respondent claimed monthly expenses of approximately $12,000 (exclusive of child and spousal support payments and income tax deductions).

[37] In this motion to change, the Applicant initially sought support in the amount of $50,000 per month. This was increased to $100,000 per month on a motion at the outset of the hearing. On the initial financial statement in support of this application, the Applicant showed expenses in the range of $25,500 net of income tax, CPP and EI contributions. The Applicant seeks spousal support in the amount of $84,951 per month.

[38] The Applicant’s proposed budget greatly exceeds any amounts expended by the parties during the marriage. The Applicant’s evidence, repeated on several occasions, with respect to the proposed expenditures was “If we were still married, that’s what we would have done.” This statement is of no assistance in determining the issues before me. When the parties were married, their spending was not extravagant, even when the Respondent earned significant amounts of money. I also note that the Applicant’s evidence was that the Respondent was very controlling and questioned her spending. Therefore, it seems very unlikely that extravagant expenses would have been incurred if the parties were still married. In this case, the Applicant seeks a level of spousal support which would provide a much higher standard of living than the parties experienced during the marriage.

[39] Once the amount of support is determined, the recipient has the right to spend the support payments as he or she deems appropriate. However, to the extent that an order for support takes into consideration the needs and lifestyle of the parties during the marriage, the proposed budget and historical expenses are relevant factors for the court to consider: Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40, 228 D.L.R. (4th) 376 (C.A.). The Applicant’s proposed budget is not consistent with the historical spending of the parties.

[40] If this were an initial application or a review, the appropriate analysis would include an examination of the standard of living of the couple at the date of separation. The economic benefits of the partnership would be taken into consideration in the equalization of net family property. In this case, the parties accumulated approximately $3.8 million over the almost 21 years of their cohabitation.

[41] The basis of support, as compensatory or needs-based or both, would then be examined. The Respondent’s significant income is a factor to be taken into consideration. The entitlement to support in this case is primarily needs-based. These needs arise as a result of the lifestyle of the family during the marriage. After this 21-year traditional marriage, it would not be appropriate that the Applicant’s lifestyle be significantly reduced from the lifestyle she enjoyed during the marriage, as a result of the breakdown of the marriage.

[42] In determining the appropriate level of spousal support, consideration of the income that could be earned by the Applicant would also be a factor. For expenses of approximately $180,000 per year, a significant income stream would be required. The Applicant, given her training and education, is unlikely to earn anywhere near the amount necessary to maintain that lifestyle. The Applicant has acknowledged that it is appropriate to impute income to her. The Applicant has proposed an imputed income of $72,000. This is based on $40,000 employment income and $32,000 interest and other investment income.

[43] As I have indicated, the Applicant’s monthly expenses were in the range of $15,000 at the date of the initial application in 2009. This includes an extraordinary amount of $4,000 for vacations. In the circumstances, the expenses to live in accordance with the lifestyle experienced during the marriage are likely in the range of $12,000 to $13,000 per month. In my view, an award of spousal support in the range of $84,000 per month requested by the Applicant would not be appropriate.

[44] This is a motion to change. Therefore, I must consider the Order which contemplated a set amount for spousal support of $12,000 per month. It was based on income over the $350,000 ceiling referred to in the SSAGs. There is also a provision to allow for the sharing of the Respondent’s incentive income. The parties specifically included a five-year review as a part of the order and directed that review to consider, inter alia, the prudent investment of income received. I should only order a variation that is justified by the material change.

[45] The Applicant wishes to fix spousal support because she does not wish to have any interactions with the Respondent. She says the Respondent’s communications have been intimidating. I agree that the Respondent’s communications to the Applicant could reasonably be perceived as aggressive and intimidating. The Respondent’s letter was addressed to “Applicant.” However, the Respondent did provide the information necessary for the Applicant to calculate the bonus payable. The difficulty in communication is not a material change to justify a variation to a fixed monthly amount for spousal support.

[46] The Applicant asserts that the Respondent was deceptive in dealing with her by failing to refer, in his letter of December 2013, to a payment of bonus money to the Respondent made in January 2013. The information about the earlier payment was disclosed in correspondence to Ms. Carr’s counsel in January 2013 and the Applicant was aware of the payment as it was included in the bonus agreement she drafted dated December 18, 2013. I find there was no intended deception on the part of the Respondent.

[47] The historical average income of the Respondent in the three years prior to the termination of his employment was $840,000. The SSAGs applied to that payor income and imputing $72,000 income to the Respondent gives a range of money spousal support of $20,160 to $26,880. I note this quantum of support is also consistent with the apparent historical spending of the parties as expressed in the financial statements sworn in the initial application. This is a significant and substantial income.

[48] If I were to order support at the high end in the amount of $26,880 per month retroactive to May 2014, the Applicant would have to repay the Respondent because she has received more in support as a result of the formula contained in the Order.

[49] The Respondent’s request to reduce the incentive amount to 20 percent from 27 percent would not, in my view, respect the agreement reached by the parties and incorporated into the Order. As I understand the Respondent’s position, he is prepared to live by the agreement with the understanding that a review will take place in 2020.

[50] The parties, in entering into the Order, determined a formula to provide support to the Applicant on a fixed basis, with an additional amount based on bonuses received by the Respondent. Notwithstanding the increase in the Respondent’s income, the parties’ efforts to quantify and articulate an amount of support ought to be respected. Although there was a significant increase in the Respondent’s income, I have determined it is not appropriate to make any variation of the Order with respect to spousal support. Accordingly, the motion to change with respect to the provision of spousal support is dismissed.

In Choquette v. Choquette, 2018 ONSC 1435 (CanLII), affirmed on appeal in Choquette v. Choquette, 2019 ONCA 306 (CanLII), the payee, in response to the payor's motion to terminate spousal support, asked for increased support based on post-separation increases in income. Hood J., considering the factors from s. 17(7) of the Divorce Act, found that the payee's failure to achieve self-sufficiency did not entitle her to an increase in spousal support:

[48] Having found there to be a material change, the issue then becomes whether there should be a variation in support as argued by Mrs. Choquette, or whether support should be terminated as argued by Mr. Choquette. In making this decision, I must consider the objectives for variation set out in s. 17(7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). These objectives are the same objectives as found at s. 15.2(6) of the Act for spousal support, and as considered by Justice Jennings (then numbered as s. 15(7) of the Act).

[49] Mrs. Choquette argues that she remains entitled to support on a compensatory basis and while perhaps she did not fulfill the expectations of Justice Jennings and the Court of Appeal in becoming self-sufficient relatively quickly, the remedy is a variation to some other amount after imputing an appropriate income to her, not a termination.

[50] As mentioned previously, she argued she was never able to attain self-sufficiency because she was out of the workforce for ten years. As I have already stated however, she made no effort to do so. Mr. Choquette should not have to continue to pay support at his previous level and certainly not at the level now being requested.

[51] Mrs. Choquette relies upon Wegler v. Wegler, 2012 ONSC 5982, [2012] O.J. No. 5129, for the proposition that the fairest way to deal with her failure to achieve or to even attempt to achieve self-sufficiency is to impute an income to her for the purposes of the SSAGs. Wegler, however, is distinguishable because in that case the mother still had child care responsibilities and would likely be in her late 50s when her child care responsibilities would end. Here, Mrs. Choquette was 39 at the time of separation in 1994 and had no child care responsibilities after 1996. After 1996, she was not prevented from immediately and fully re-entering the work place and trying to catch up. She chose to place her energy and time elsewhere. Nor did she have to contribute anything for child support or s. 7 expenses.

[52] Mrs. Choquette argues that the SSAGs are a useful tool, although the court in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 341, at para. 96, stated that they do not apply to variation orders. When Justice Jennings made his decision there were no SSAGs.

[53] Based on the SSAGs provided, spousal support at the time of initial separation in 1994 would have ranged from 7.5 to 15 years based upon the duration of the marriage. Mr. Choquette has paid over 22 years of support. While I am not relying upon the SSAG calculations, they are supportive of the view that in certain circumstances, support is not expected to go on forever.

[54] I have considered the objectives listed in s. 17(7) of the Act.

[55] With respect to (a), recognition of economic advantage or disadvantage arising out of the marriage, any disadvantage to Mrs. Choquette arising from the marriage has been compensated for by the length of support. Any disadvantage that she may now be in is a result not of the marriage or its breakdown, but by her choices made since separation.

[56] With respect to (b), apportioning financial consequences for childcare other than child support obligations, Mr. Choquette had all of the child care responsibilities following Justice Jennings' decision. Justice Jennings stated that he took his custody order into account and Mrs. Choquette’s child care expenses when exercising access into account when considering spousal support. There are no child care expenses now that come into play.

[57] While Mrs. Choquette did not make submissions on (c), economic hardship arising from breakdown of the marriage, any economic hardship arising from the breakdown of the marriage has long been dealt with. The breakdown took place in 1994. Support was paid for 22 years and Mrs. Choquette, with her degree and qualifications at the age of 39, had every opportunity to overcome any economic hardship there might have been at the time.

[58] With respect to (d), promotion of self-sufficiency of each spouse within a reasonable period of time, the order made in 1996 was designed to promote Mrs. Choquette’s economic self-sufficiency. She chose a different path. The only order that can be made to promote her self-sufficiency would be a termination of support.

[59] Support was stayed on October 5, 2016 by Justice Corbett. In Mr. Choquette’s proposed order, provided at the commencement of trial, he asked for repayment of the support paid from January 1, 2016, when his application was issued, to October 5, 2016 when the support was stayed. This would be a repayment of ten months or $47,500. However, during closing argument no submissions were made by Mr. Choquette in support of this argument or suggesting that he was seeking this repayment. Accordingly, no submissions were made by Mrs. Choquette on this issue.

[60] If it had been argued, I would have been hard pressed, taking into account the different economic circumstances of the parties, to make such an order. Such an order, if sought, would, in my view, have created an undue hardship for Mrs. Choquette and would have been inappropriate.

[61] I am mindful that this order may create economic hardship for Mrs. Choquette, because she does not appear to be self-sufficient at present. However, the question I must address in this case is whether she remains entitled to spousal support from her former spouse. In my view, having regard to the provisions of the Divorce Act, it is clear that she is not.

In Hartshorne v. Hartshorne, 2010 BCCA 327 (CanLII), Smith J.A. considered whether the payor's post-separation income increase should be considered when calculating the amount of the lump sum award. The conceptual basis for the spouse's entitlement to support is an important consideration. Whether the basis is compensatory or non-compensatory, the Court must consider the needs of the payee and the ability of the payor to pay:

[54] The appellant submits that SSAG should not have been used to quantify the respondent’s claim as the authors did not contemplate its use in the unusual circumstances of this case where there existed many of the same factors that made SSAG difficult to apply in variation applications, including post-separation increases in the payor’s income, re-partnering, remarriage and second families. In the alternative, he contends that if SSAG is to be applied, the trial judge erred in quantifying the award based on the high end of the SSAG ranges in both amount and duration.

[55] As noted above, the trial judge made an initial order (not a variation order) pursuant to s. 15.2(1) of the Divorce Act. Therefore, a consideration of SSAG was required: Yemchuk v. Yemchuk, 2005 BCCA 406, 16 R.F.L. (6th) 430; Redpath v. Redpath, 2006 BCCA 338, 33 R.F.L. (6th) 91; Tedham v. Tedham, 2005 BCCA 502, 47 B.C.L.R. (4th) 254. The authors of SSAG recommend that “unusual” situations are best left “to the discretionary, case-by-case determination under the evolving framework of current law.” They have also stated that consideration of a payor’s post-separation income for the purposes of spousal support is a “complex, fact-based decision”. See ch. 14 SSAG.

[56] Here, the trial judge made findings of fact that included: (i) the parties continued to function as a single economic unit until at least November 1999 (at para. 114); (ii) the financial dependencies in their relationship created a significant financial disparity in their standards of living after separation (at para. 97); and (iii) the respondent was left in a financially vulnerable position post-separation, where she had to struggle to gain self-sufficiency with limited means to do so (at para. 97). He was alive to the challenges of quantifying the respondent’s award on a lump sum basis and was aware of this Court’s jurisprudence on the application of SSAG. He considered the objectives and factors of ss. 15.2(4) and (6) in the Divorce Act. He also reviewed the authorities on when a payor’s post-separation income should be used to calculate the amount of spousal support: D.B.C. v. R.M.W., 2006 ABQB 905, 69 Alta. L.R. (4th) 170; Kelly v. Kelly, 2007 BCSC 227; Bryant v. Gordon, 2007 BCSC 946, 45 R.F.L. (6th) 99; C.L.M. v. R.A.M., 2008 BCSC 217; Chalifoux v. Chalifoux, 2006 ABQB 535, rev’d on other grounds 2008 ABCA 70; Rozen v. Rozen, 2003 BCSC 973, 37 R.F.L. (5th) 205; Fletcher v. Fletcher, 2003 ABQB 890; and Robinson v. Robinson, 1993 CanLII 8491 (ON CA), 107 D.L.R. (4th) 78, 48 R.F.L. (3d) 265 (Ont. C.A.). He concluded that a significant factor in determining whether a payor’s post-separation income should be included in the crafting of a spousal support order is if the source or basis upon which the post-separation income was realized had changed since the marriage.

[57] The appellant submits there was no evidence that the respondent contributed to the acquisition of his skills or credentials, or to the advancement of his career in a manner that led to his ability to earn his now increased income (using the language of Langston J. in D.B.C. v. R.M.W.). However, the trial judge arrived at a fact-based determination for including the appellant’s post-separation income in his quantification of the lump sum award in accordance with the comments of the authors of SSAG (referred to at para. 37 above). In that regard he made the following findings: (i) that there was “a clear temporal link between their marriage and this increase [in the appellant’s income between 1987 and 1999] with no intervening change in Mr. Hartshorne’s career, or any other event, that could explain the increase (at para. 114); (ii) that “Ms. Hartshorne’s contributions in those years [between 1987 and 1998] helped Mr. Hartshorne establish his practice and contributed to his improved income in the 2000-2007 period” (at para. 116); and (iii) that the parties made a joint investment in Mr. Hartshorne’s career and therefore “[i]t would be unfair for him alone to reap the benefits” (at para. 117).

[58] The appellant acknowledges that the respondent has a significant claim for compensatory spousal support. The object of compensatory support is “to redress the economic disadvantage that arises from the marriage or the conferral of an economic advantage upon the other spouse” as well as “the economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts”: Chutter v. Chutter, 2008 BCCA 507 at paras. 50-51. The appellant’s claim that the respondent made no contribution to the advancement of his career because he was an established lawyer when their relationship began, ignores the contribution the respondent made by assuming the role of primary caregiver to the children, both during the marriage (between 1987 and 1998) and after separation (2000-2007), and how her assumption of that role gave him the opportunity to devote his time to the advancement of his professional development. It also ignores the sacrifice she made to her career by devoting her energies to the raising of the parties’ children, which in turn significantly impacted her ability to advance her professional development.

[59] The trial judge concluded that consideration of each party’s post-separation income would more accurately reflect the reality of the respondent’s economic disadvantage arising from the breakdown of the marriage. He found that it would be to the financial benefit of the appellant because the appellant’s income in 1999 (at $342,712) was higher than in each of the following years, and the respondent’s lack of income in 1999 subsequently increased as a result of her continued employment as a lawyer from 2001 forward.

[60] The spousal support order in Hartshorne 1999 did not include an award for compensatory support. This was a relationship of 12 1/2 years. It was of a sufficient length that consideration of the respondent’s standard of living post-separation was a relevant factor to determining the appellant’s entitlement to compensatory support: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 at 870. The effect of the spousal support award in Hartshorne 1999 and Hartshorne 2002 was to leave the respondent in a diminished financial state at a time when she had the greatest financial need. An award of compensatory spousal support had to “alleviate the economic consequences of marriage or marriage breakdown” (Moge at para. 47) for the respondent. In my view, the trial judge achieved that objective in crafting an award that fell at the high end of the quantum and duration ranges of SSAG.

[61] In my view, deference must be given to the trial judge’s findings of fact, which informed the basis for his quantification of the lump sum award. I see no error in principle in his quantification of the lump sum award and would not accede to these grounds of appeal.

In T.N.F. v M.J.V.A., 2018 ONSC 3310 (CanLII), the payee spouse had a needs-based entitlement for spousal support. His income was much lower than the payor's spouse, and his overall standard of living declined since the parties physically separated. The Court found that it was appropriate to calculate spousal support using the payor's income at the date of separation, rather than her higher post-separation income:

[200] M.V.J.A.’s support claim is primarily needs based and, in this case I find that it is appropriate to calculate support under the SSAG using T.N.F.’s income as of the date of separation rather than her higher post-separation income: see Fisher at para. 89 and Thompson at para. 103.

In Hersey v. Hersey, 2016 ONCA 494 (CanLII), the payee spouse sought increased retroactive and prospective spousal support on the basis of the payor's post-separation income increase and the fact that she was medically unable to work full-time. The Court of Appeal upheld the trial judge's finding that the payor's career was established prior to the marriage and that the payee had not made the sorts of sacrifices the courts have required to justify an award for increased compensatory support:

[19] In her consideration of these issues, the motions judge relied on the principles summarized in Thompson v. Thompson, 2013 ONSC 5500, at para. 103. At para. 12 of her reasons, she quotes from that decision in some detail.

[20] 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.

[21] It is implicit in the motions judge’s findings that she did not accept much of the appellant’s evidence. Specifically, she did not accept that the appellant’s medical condition was such that it prevented her from working full-time. She considered the evidence that the appellant offered but found that it was insufficient to support her claim. The appellant’s evidence in her financial statement was problematic because it included no evidence about the current value of the house she’d acquired soon after the separation or her pension…both significant assets. She also considered that the appellant did not move for an increase in spousal support from the time of the 2007 order until the respondent moved to decrease his child support obligation. After doing a “Divorce Mate” calculation, she concluded that what the respondent was currently paying for spousal support was within the suggested range.

[22] The appellant complains that the motion judge failed to consider her claim for retroactive spousal support and erred in her finding that the award she requested, in excess of $200,000, appeared unreasonable having regard to the financial circumstances of the respondent. We disagree. First, having concluded that no basis for an increase in spousal support was established, there was no need to consider a retroactive award. Second, the record disclosed that at the time of the hearing, the respondent was two years from retirement at which time his pension would be $70,000 per year.

[23] We again repeat that the reasons leave much to be desired. However, we are not persuaded that they are so deficient when placed against the record that was before the motions judge that the parties are unable to know why the judge reached the conclusions she did. The reasons are sufficient for appellate review.

In Helle v. Helle, 2019 BCCA 97 (CanLII), the payee sought an increase in the quantum of spousal support based on post-separation increases in income. The Court of Appeal summarized the caselaw around the treatment of post-separation increases in income as follows:

[35] In my view, the judge’s analysis here is faulty. In Judd v. Judd, 2010 BCSC 153, Punnett J. helpfully reviewed cases that carefully analyze how to address post-separation increases in income. After noting these cases and then citing at length from the decision in Hartshorne v. Hartshorne, 2009 BCSC 698, Punnett J. says:

[23] The resolution of the issue of post-separation wage increases is clearly fact based. The principle that appears to emerge from current case authority is that the connection the increase in salary has to the recipient’s contribution during the marriage is determinative. If the increase in salary is founded in expertise and seniority established during the marriage and no intervening event or events are the cause of the increase, then the increase is to be included unless the recipient’s role during marriage necessitates a different determination. If an event after separation is the reason for the increase, in whole or in part, then the increase may be excluded from consideration, also in whole or in part.

[...]

[38] Further, the judge appears to have concluded that whether increases in post-separation income should be included was an all-or-nothing question. He does not appear to have contemplated the possibility, described in Judd, that post-separation income may be included, in part, in determining a party’s obligation to pay support.

[39] The judge did not expressly address factors that are important and relevant in determining whether post-separation income increases are included in the spouse’s guideline income. Two of the most important considerations from the jurisprudence are: the expertise the respondent acquired during the parties’ relationship and the extent to which the respondent found himself in favourable circumstances as a result of the joint enterprise of the marriage.

[40] As in Judd and Hartshorne, it cannot be said that the respondent’s increased income through the change in his position at work is not connected to the appellant’s contributions during their marriage. The parties in this case made “a joint investment in one career” by having the appellant take on the bulk of the caretaking responsibilities with the couple’s children while the respondent pursued his career outside the home: Judd at para. 24, Hartshorne at para. 117.

[41] The judge also failed to address whether the spousal support the respondent paid under the original order was currently within the range described by the SSAG, regardless of whether the income increase was applicable. The judge did not address other facts, specific to this case, which indicated that the amount of the original spousal support order was no longer appropriate. For example, the judge did not assess the amount in light of the fact that there was no longer any offsetting allowance for child support because the parties’ children had reached the age of majority and were no longer dependent.

In Colautti v. Eggett, 2019 ONSC 2064 (CanLII), the payee spouse sought an increase in spousal support while the payor spouse sought a termination of spousal support. The payee spouse was still in need of support. Gorman J. held that the payee spouse was not entitled to support based on the payor spouse's post-separation income because she made no contribution that was directly linked to the payor spouse's post-divorce success and because it was the payor spouse who had custody of the children:

[64] Mr. Eggett’s income has increased since the separation and divorce. In my view, this increase was entirely based on his own actions. There is no evidence that the Applicant made any contribution that can be directly linked to Mr. Eggett’s post-divorce career success. Indeed, following separation, it was Mr. Eggett who had custody of the children. Accordingly, I am not inclined to rely of the SSAG for the purposes of awarding spousal support.

In Hamilton v. Saint Denis, 2019 ONSC 2766 (CanLII), the payee spouse brought a motion to change the quantum of spousal support on the basis of the payor spouse's post-separation income increase. At the time of the original order, the payee's entitlement to spousal support was both compensatory and non-compensatory. The fact that the spouses made a joint investment in the payor's career justified calculating spousal support based on the payor spouse's post-separation income:

[46] In applying the enumerated principles above to the specific facts of this case I conclude the following: Ms. Hamilton has both a compensatory and non-compensatory claim to spousal support. While a notable portion of her entitlement to spousal support is needs and lifestyle based, her compensatory claim is not negligible. This was a long term relationship. Ms. Hamilton sacrificed a career of her own or even further education to care for the children and home and to move when Mr. Saint Denis’ job required it. Mr. Saint Denis’ work demanded that he travel, how much is in dispute, but travel he did nonetheless, which necessarily meant that Ms. Hamilton was the sole person at home. This gave Mr. Saint Denis substantial freedom to focus on his job and to develop the skills he needed to carry out his job in roofing sales and eventually in management of roofing sales.

[47] Because there was only one earner in the family during the marriage, and the family relied on Mr. Saint Denis’ employment to support the family, clearly the parties’ personal and financial affairs were completely integrated. The couple was clearly making a joint investment in one career which was the one belonging to Mr. Saint Denis. From the point of view of marketability advantage in the work force, I can only conclude that there was a resulting advantage to Mr. Saint Denis and a concurrent marketability sacrifice in the work force on the part of Ms. Hamilton as a result of the family arrangement and division of family responsibilities chosen by the couple.

[48] For a large portion of the marriage Mr. Saint Denis worked as a salesman. He attributes his current financial success to the changes within his company and the choice of new locations by his company and his transferring into the executive stream of his company’s work. He also attributes it to luck but at the same time also to his hard work post-separation.

[49] On the evidence, I cannot find the clear delineation Mr. Saint Denis alleges between his pre and post-separation career path. The evidence showed that for most of his marriage to Ms. Hamilton he worked as a salesman for Ideal Roofing. Surely the experience and knowledge base of this work permitted him to qualify for the sales and managerial responsibilities he then began to exercise when the family moved from Montreal to Ottawa and which he was exercising at the time of separation. I also find it difficult and rather artificial to completely separate that the knowledge base and skill set that he developed while a salesman and sales managerial employee for his current company did not in any way contribute to his credentials to his current executive position of general sales manager of his same company, Ideal Roofing, even if the company began to operate in new locations and to manufacture new products.

[50] Without in anyway meaning to minimize the personal hard work and sacrifices Mr. Saint Denis has done post-separation, I fail to see how his work and experience in the sales operation of his company during the marriage has not contributed, or to put it another way was not foundational to his current executive success in the company when he himself has pointed to the sales success of his company as the main reason for his income increase post-separation. I cannot conclude that Mr. Saint Denis’ evidence relating to his post-separation income increase in any way precludes Ms. Hamilton from sharing in a substantial way in his post-separation income increases.

[51] I acknowledge that the length of time the parties have been separated, some 11 years, may weigh in favor of Mr. Saint Denis and a reconsideration of the level of support may be warranted. While Mr. Saint Denis, himself, states that in order to keep his current position he has made sacrifices, working long hours and often travelling, which he causally relates to his current marriage and not his past one. Nonetheless, the work and sacrifices he carried out during his first marriage, were foundational to his current work and would not completely preclude Ms. Hamilton from having a compensatory claim just because his current wife may also have one if they were ever to separate. Mr. Saint Denis appears to recognize the contribution and sacrifice a spouse may make to his career, just not that of his former spouse.

[52] Another consideration is whether Mr. Saint Denis made any contributions to Ms. Hamilton’s career advancement during the marriage. There is no evidence of that.

[53] One must also consider whether Ms. Hamilton has made reasonable steps towards achieving self-sufficiency. Ms. Hamilton has some medical issues that existed at the time of the divorce order. With her increased age there is no evidence that these medical issues have changed for the better. Nonetheless, an income was imputed to her at the time of the divorce, so she was expected to contribute to her support at least, at a basic level ($18,000.00 in 2013). Given her history or lack of history in the work force there is no evidence to support the conclusion that she is capable of earning substantially more than the basic level imputed to her at the time of the divorce. Her work history since the divorce, in my view, confirms this fact. It is reasonable and fair that an income continue to be imputed to her and, as stated earlier, I find an imputation of $20,000.00 on the facts of this case to be reasonable and I so order.

[54] For all of the above reasons, I find that a material change of circumstances has been proven. Spousal support ought to be increased in view of Mr. Saint Denis’ substantially increased ability to pay spousal support. I see no reason why the spousal support advisory guidelines ought not to apply to the facts of this case. In view of the time the parties have been separated, and acknowledging Mr. Saint Denis’ current family responsibilities but without giving them the priority over his past responsibilities he suggests, I fix spousal support at the low level. Based on the divorce mate calculations provided by counsel, attributing annual employment income of $223,588.00 to Mr. Saint Denis and imputing an annual income of $20,000.00 to Ms. Hamilton, I fix spousal support at $5,344.00 per month commencing August 1, 2018. This amount may have to be adjusted in view of the fact that Mr. Saint Denis has acknowledged that his income for 2018 is $229,218. If this becomes an issue I can be spoken to.

In Nieuwenhuysen v. Nieuwenhuysen, 2019 ONSC 4775 (CanLII), the payor spouse received a promotion shortly after separation, which resulted in a 7% increase in his base salary. The Court found that the payee spouse was entitled to participate in the payor spouses' post-separation income increase for the following reasons:

[47] On the facts before me, I find that the Wife is entitled to participate in the Husband’s increase in income post-separation. I find this for several reasons:

a) The Wife is entitled to spousal support on a compensatory basis;

b) The increase in income was provided by the same employer the Husband had throughout the marriage;

c) The Husband’s promotion and raise were a result of his work with the Region of Peel throughout the course of the marriage;

d) The Husband stated that although he did not have the qualifications for the job, his employer was willing to give him a chance and give him 12 months to prove himself. It is acknowledged that he educated himself during that time, which occurred post-separation, but he was only given this opportunity to prove himself because of his successful career at the Region that he built throughout the marriage;

e) The additional time the Husband spent on courses and training during his 12 months was during a period when either the wife had the children with her, or when he shared childcare responsibilities with her;

f) This was a long-term relationship where the parties’ personal and financial affairs were completely integrated;

g) The promotion occurred only two months after separation; and

h) The continual increases in the Husband’s income is attributable to a job that was obtained when the family still lived together in the matrimonial home, albeit separated. At this time, and in all respects, the parties were living the very same life they led prior to separation, from a financial perspective and from the perspective of the roles they had in the family.

In B.S. v. B.W., 2019 ONSC 2769 (CanLII), the payee spouse had a compensatory entitlement to support. The evidence made it clear that the payor spouse's career was supported through the efforts of the payee that specifically freed him up to continue his career path uninterrupted. Therefore, the payee spouse was entitled to benefit from the post-separation increase in income:

[64] It is difficult to understand Mr. S.’s position that his move to the United States with the accompanying increase in his income is unrelated to the support recipient and their relationship. The evidence is clear that during the course of the marriage, Mr. S.’s career was supported through the efforts of Ms. W. and those efforts specifically freed up Mr. S. to continue his career path uninterrupted while she focused her energies on raising the children. The skills, resume and experience that Mr. S. acquired during the relationship and while Ms. W. was working to raise their children and support their household, directly allowed him to search for and obtain the lucrative position he now enjoys in the United States. His belief that there is no connection between the marriage choices and his success is not shared by the Court.

[65] He would have this Court make a determination that he alone undertook the risk of such an undertaking and ought to alone receive the benefits. I find that it was only as a result of the slowly and steadily acquired benefits flowing from the efforts of both parties during the marriage that he had the skills, experience and strength of mind that permitted him to even consider that bold manoeuvre into employment in the United States.

[66] It is also not insignificant that he had underneath him a substantial buyout of a DuPont pension that was acquired and accumulated during the course of the marriage. This approximately $1.4 million dollar “cushion” sat underneath him while he took the “risk” of obtaining further and better employment in the United States in a substantially similar type of career path that he had at DuPont and in which he continues as an engineer.

[67] Further, while it is clear that the parties did utilize both of their post-separation financial positions for many years to assess and reduce support, at the moment that the Applicant moved to the United States and doubled his income, that situation did not continue and he decided to reduce the support.

[...]

The Court also found that it would be unfair to reduce spousal support during periods when the payee spouse's income was improving, but to fail to increase spousal support in line with payor spouse's increased income:

[80] In reviewing the totality of the situation between the parties, I see absolutely no acceptable reason why Mr. S. believes that his post-separation success is unrelated to the parties’ relationship. He continues in the same type of career he was in during the relationship. He has strongly and positively continued through his career path in an almost uninterrupted fashion and in a very lucrative way. That he says that Ms. W had nothing to do with his success is not only difficult to understand but it is completely divorced from the reality of the choices these parties made between them for their family over a very long period of time. This includes the periods after separation when both parties “post-separation” financial realities were considered in their agreed changes to the contract between them.

[81] I find that it would be inequitable and unfair on the one hand to reduce the spousal support during periods of time when Ms. W.’s income was improving and thereafter not only fail to increase the spousal support when Mr. S.’s income increased but to terminate it, as he requests this Court do. This is not the only consideration but it is a significant one. [...]

In Kozak v. Kozak, 2018 ONSC 690 (CanLII), the payee spouse had a compensatory entitlement to spousal support based on the roles of the parties during the marriage. The Court did not award increased spousal support because there was no link in the evidence between the payor spouse's present occupation and skills and any contribution the payee spouse made during the marriage:

[129] This was a medium-term marriage of 12 years, with periods of co-habitation less than that. There is very little evidence called by Mrs. Kozak regarding the sharing of post-separation increases, other than that she did not work outside the home after the children were born and after separation raised the children single-handedly, thus freeing Mr. Kozak to focus on his work. At the same time, while Mrs. Kozak refers to Mr. Kozak as a computer programmer, there is no indication as to when and how he developed his skills. The evidence is that today, he is Vice-President Developer Operations, and there is a significant lifestyle change in that Mr. Kozak now spends a significant amount of time, often months at a time, in the Philippines for work, which he did not during the marriage. There is no link in the evidence to the increase in income based on Mr. Kozak’s present occupation and skills and the contribution made, if any, by Mrs. Kozak during the marriage.

[130] In reviewing the post-separation income increases there are two years of large increases in excess of USD $20,000, in 2010 and 2013. Again, there is no link in the evidence to the contributions, if any, made during the marriage, which ended in 2002. The amount of time that has elapsed since separation is relevant in considering whether the recipient’s contributions during the marriage are causally related to the post-separation increases in income. I note that Mrs. Kozak has partially shared in six years of post-separation income increase, as the spousal support was set on Mr. Kozak’s 2008 income. Mrs. Kozak obtained a para-legal designation during the marriage, which was a contribution by the payor to her career advancement, although as discussed below she has not taken any steps to achieving self-sufficiency, another factor that weighs against taking into account post-separation increases: Thompson, paras. 103 (j)-(m). After considering all the circumstances, I decline to exercise my discretion to award Mrs. Kozak a sharing of post-separation income increases, beyond the partial sharing of income increases established in the 2008 Consent Order.

Authorities:
Thompson v. Thompson, 2013 ONSC 5500 (CanLII)
Kinsella v. Mills, 2020 ONSC 4785 (CanLII)
Fisher v. Fisher, 2008 ONCA 11 (CanLII)
Patton-Casse v. Casse, 2012 ONCA 709 (CanLII)
Carr v Condon, 2017 ONSC 173 (CanLII)
Carr v. Condon, 2018 ONCA 509 (CanLII)
Choquette v. Choquette, 2018 ONSC 1435 (CanLII)
Choquette v. Choquette, 2019 ONCA 306 (CanLII)
Hartshorne v. Hartshorne, 2010 BCCA 327 (CanLII)
T.N.F. v M.J.V.A., 2018 ONSC 3310 (CanLII)
Hersey v. Hersey, 2016 ONCA 494 (CanLII)
Helle v. Helle, 2019 BCCA 97 (CanLII)
Colautti v. Eggett, 2019 ONSC 2064 (CanLII)
Hamilton v. Saint Denis, 2019 ONSC 2766 (CanLII)
Nieuwenhuysen v. Nieuwenhuysen, 2019 ONSC 4775 (CanLII)
B.S. v. B.W., 2019 ONSC 2769 (CanLII)
Kozak v. Kozak, 2018 ONSC 690 (CanLII)