When the dust settles following a divorce, most issues of property and financial matters are generally finalized and will not be revisited by either party or a court. However, spousal support is an issue that can be re-opened by one or both former spouses depending on the circumstances of the case.
One of the most frequent reasons to review spousal support occurs when an ex-spouse’s income increases. Whether it is a salary increase from a new job or a new partner’s income, the post-divorce change in circumstances is very often considered as cause for review.
In cases of spousal support, there are guidelines established by the courts that address universal questions and issues. Additionally, the individual facts and conditions of each case sometimes make applying universal rules difficult.
Spousal Support Guidelines
Spousal support is a matter governed by the federal Divorce Act. The federal guidelines provide a basic structure in instances where there is both a legal entitlement and obligation to support. While the federal guidelines offer uniformity in calculating support amounts, the final ordered payments can vary.
Provincial and territorial laws sometimes overlap federal guidelines and necessitate that a court consider additional factors in determining the true support amount.
Initial Support Determinations
During an action in divorce, lawyers for both parties will investigate and argue a variety of factors that determine whether spousal support is legally required. Spousal support laws in Canada can be complex and difficult to negotiate.
Initial determinations may be based on need and any significant decrease in the standard of living experienced by a former spouse. It is important in making the initial determination that lawyers rely on a number of accurate facts to arrive at the most appropriate support amount pursuant to the guidelines. Each of the following must be considered in determining support:
• the length of the marriage or cohabitation
• social assistance and non-taxable income issues
• whether child support is ordered
• lump sum payments
• the term of the support
Additionally, lawyers must evaluate special exceptions that may affect support. Since the federal guidelines were developed to address typical cases, any variance can account for increases or decreases in the total support amount.
Careers and Salaries Change Over Time
During the pendency of support payments following a divorce, when a former spouse’s income increases, there is sometimes a legal cause to revisit the initial support finding. Whether a year or ten years have passed since executing a support order, there may be instances that warrant re-evaluation of the support terms.
A common reason to revisit support when a former spouse’s income increases is when the receiving spouse can show a causal link between the additional earnings and some sacrifice or contribution during the marriage. For instance, when a former spouse contributed to education and training during the marriage that results in a salary increase after separation, a causal link may be demonstrated.
Only a Court with Jurisdiction Can Alter Existing Support
Generally speaking, spousal support may not be adjusted or reduced because of a payor spouse’s increased income from a marriage or partner. Conversely, when a recipient spouse remarries, it can affect the amount of support being paid depending on how a court evaluates the quality of living standard for that spouse. A court may look to how the recipient’s new financial circumstances affect standard of living.
Though spousal support falls under federal guidelines, there are additional provincial or territorial laws and considerations that may have an impact on any adjustments to existing support. The only way for either former spouse to request or make an adjustment is through a court ordered review. In determining whether a change should occur, the best advice for either party is to consult an attorney with experience and understanding of the specific laws and guidelines.
A qualified lawyer is always the best resource for seeking information on each particular case and what steps are required next. All parties should ensure that they seek legal counsel when deciding to pursue action based on an increase in income.