How are post-separation income increases treated for support purposes?

At the outset, it is important to note that child support, pursuant to the Child Support Guidelines, is supposed to be recalculated on a yearly basis.

On the issue of child support payments, the child is entitled to benefit in the payor’s post-separation increases income in the form of increased child support payments. In situations where there is an existing order and/or agreement, one would bring an application to vary the existing order and/or agreement. If the application to vary the existing order is granted, then the amount will be adjusted in accordance to the new income of your former spouse.

The issue of a payor’s post-separation income increase and spousal support is less clear. Lawyers and judges alike continue to grapple with this issue.

While this question usually arises during a review, it can also arise during the time of the initial order.

The following are some general principles applicable to this issue:

1. It would be incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the parties’ incomes at the time of separation is the only relevant income in determining spousal support.
2. It is also incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the spouses’ post-separation incomes always ought to be used in determining spousal support.
3. Some factors to be considered on this issue are the length of the marriage, the immediacy of the increase (one year vs. 10 years after separation), and whether spousal support is compensatory or non-compensatory (since non-compensatory spousal support would present a less compelling argument that the payor’s post-separation increase should be shared).

In situations where there is an existing order and/or agreement, and there has been a material change in circumstances, one would bring an application to vary. If the application to vary the existing order is granted, then the amount of spousal support will be adjusted in accordance to the new income of your former spouse.

For more information on what you are entitled to in the event that your spouse’s income increases, contact Krol and Krol at 905.707.3370.