Judd v. Judd

The parties involved in this case were married for 17 years and had two children. Separated in 2003 and divorced in 2005, the husband agreed to pay spousal support pursuant to a Separation Agreement of 2004. In accordance with the agreement, the wife’s entitlement to support was subject to court review in 2006.

Traditionally trial courts try to fix permanent maintenance thus a variation or termination of spousal support is only warranted when there is a change in circumstances. However, as this term for review was incorporated into the Separation Agreement itself, the hearing for review was de novo and the review was treated as an originating application for spousal support. As such, in reaching its decision with respect to entitlement for spousal support the court would first need to be satisfied that the Divorce Act requirements for support are met.

The purposes of providing spousal support under the Divorce Act include:

  • Recognizing economic disadvantages caused by a marriage or subsequent divorce
  • Fairly divide the financial responsibilities associated with raising any marital children
  • Relieving any economic hardship that arises as a result of the divorce
  • Encourage increased economic self-sufficiency over a period of time

The main issue arising at review was whether a post-separation increase in earnings for the payor spouse should be considered. At the time of separation the husband’s annually reported income was $105,000. However, in 2008, the husband earned $156,170.04. The husband argued that he commenced his career as an engineer for the city of Vancouver prior to marriage and that the wife did not contribute to any salary increase and promotions obtained by the husband.

The court, however, took the position that husband’s promotions were not disjoint from marriage. The parties relocated from Vancouver to the Sunshine Coast for the sake of the husband’s career. As a result of the move, the wife was forced to subordinate her career to needs of family as the relocation was to an area of limited employment opportunity. The wife’s personal sacrifices along with her commitment to the care giving of the children were found to contribute to the wage increase of the husband. Therefore, the husband’s increased income was taken into account on review of support:

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.

With respect to economic self-sufficiency, the husband acknowledged the wife’s entitlement to spousal support but argued that she did not make adequate efforts to become self-sufficient. The husband argued that she retrained for a new career as opposed to continuing her career in human resources and thus purposefully earned a lower income. Further, the husband showed that the wife’s real estate listings were less than those of her business partners arguing that she was underemployed compared to the potential for employment.

The court found that the career retraining was required after relocating as a result of the job market and employment demands in their small town. Further, the comparative analysis was given little merit as the court recognized that there is an array of reasons for differences in listings between different agents and lack of diligence is not the necessary cause.

In all, Justice Punnet decided that the wife’s contributions during the course of the marriage and afterwards, by way of her necessitated change in employment and slow reestablishment of her career, contributed to the advancement in the husband’s career both during and after the marriage. Therefore, the wife was entitled to increased spousal support as a result the husband’s raise in income.

You must be very careful when deciding whether to return to Court. Carefully analyze first whether the outcome might be worse than the position that you were in before returning to Court.

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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