Increase in Spousal Support

There may be instances where a spouse that is ordered or agrees to pay spousal support to a former spouse receives a raise or some form of an increase in income after the order is made or the agreement is signed. The question in these cases is whether the recipient of spousal support can ask for an increase in his/her support based on the recent increase in the payor’s income.

Cases such as Fargey v. Fargey and Abernethy v. Peacock have dealt with this issue, and highlight various important factors as well as objectives that a court must consider prior to making a ruling on the matter.

The cited legislation that deals with varying/increasing spousal support is section 17 of the Divorce Act and section 37 of the Family Law Act.

Section 17 of the Divorce Act states that:

17(1) A court of competent jurisdiction may make an order varying, rescinding, or suspending, prospectively or retroactively,

• (a) A support order or any provision thereof on application by either or both former spouses; or,
• (b) A custody order or any provision thereof on application by either or both former spouses or by any other person.

17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs, or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

17(7) A variation order varying a spousal support order should

• (a) Recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
• (b) Apportion between the former 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;
• (c) Relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and,
• (d) Insofar as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

The cases of Abernethy and Fargey conveyed that the most vital factor that a Judge must consider when ruling on an Application to vary spousal support is whether there has been a material change in circumstances.

In the case of Abernethy, because there was a material change in circumstances, the Applicant was entitled to a variation of support based on “contract, on need, and on compensation.”

The Court in Fargey cited the case of Willick to properly define the meaning of a “material change in circumstances.” A material change in circumstances was defined as a change that, “if known at the time, would likely have resulted in different terms.”
To learn more about an increase in spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.