Post-Separation Income Increases and a Spouse’s Entitlement to Share

Hersey v Hersey, 2016 ONCA 494

A Former Spouse’s Entitlement to Share in Post-Separation Income Increases

This case deals with the issue of post-separation income increases and a spouse’s right to share in such increases. It stands for the proposition that such an increase in income or termination of child support will not always result in an increase in spousal support. Here, we learn that without a compensatory claim, a spouse will generally be unable to share in the other’s post-separation income increases.

BACKGROUND

The parties were married in 1986 and have one child who started university in 2015. The husband worked fulltime as a lawyer and the wife as a teacher.

The parties separated in either January 2004 or April 2005 (they did not agree on the separation date). Their divorce proceedings began in 2005, after the husband allegedly assaulted the wife.

Between 2007 and 2009, whilst the divorce proceedings were ongoing, the wife’s health deteriorated. Additionally, she claimed that the assault and subsequent divorce impacted her mental health.

The final divorce order required the husband to pay child support in accordance with the Child Support Guidelines, and monthly spousal support in the amount of $2,000.

In 2013, the wife reduced her employment to part-time because she was medically unable to work full-time.

In 2015, the husband brought a motion seeking to reduce the child support order because their child would soon be attending university. The wife agreed to that change and commenced her own motion for increased spousal support. The motions judge determined that the wife was not entitled to an increase in spousal support. The wife appealed that order.

ANALYSIS

On appeal, the wife presented a number of issues; the primary ones being the insufficiency of the motion judge’s reasons, and the judge’s failure to apply the appropriate legal principles.

The Court of Appeal began its analysis by noting that, absent an error in principle, a material misapprehension of evidence or an award that is clearly wrong, a motion judge’s determination of support is entitled to deference. The Court further noted that the law does not require a judge to deal with all the evidence or arguments; that it is plainly sufficient for a judge to provide parties with their decision and a brief explanation of their reasoning.

In assessing the motion judge’s reasoning, the Court of Appeal noted that whilst her reasons could have been more fulsome, they were sufficient. The Court found that where a case turns on the application of already well-settled law, a judge is not required to expand on or delve deeply into those principles to demonstrate their awareness of those principles – for judges are trusted and presumed to know the law.

Although the parties jointly agreed that there had been a change in their financial circumstances (the husband’s income in 2014 was $324,000, whilst the wife’s had decreased to $65,400), the Court of Appeal remained satisfied that the motion judge was correct in concluding that the wife failed to establish a right to share in the husband’s post-separation income increases. The Court found that the parties’ careers were well-established prior to their marriage, and that there had been no significant changes in their careers post-marriage or post-separation. The Court further found that the wife did not make the sorts of sacrifices throughout their marriage that would have otherwise justified an award for increased compensatory support (for example: the evidence about child care responsibilities during their relationship were conflicting).

Furthermore, the Court of Appeal did not accept the wife’s evidence regarding her medical conditions; the Court found her health was not such that it prevented her from working full-time. The Court of Appeal consequently – and much like the motion judge – concluded that the current spousal support order was within the appropriate range, and consequently dismissed the wife’s appeal.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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