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Do I have to pay more spousal support if I make more money after separation?

Jonathan Song

Written by: Jonathan Song (View All Posts ) Published: January 3, 2017
Categorized: Alberta, Case Analysis, Divorce, Edmonton, Family Court, Family Law, Income, Separation, Spousal Support.

Many people change jobs at some point. If a spouse was ordered by the court to pay some amount of spousal support to his ex and he later loses his job and ends up with less income, he can often successfully ask the court to decrease how much spousal support he is to pay.

What if the payor spouse’s income went up after separation? Can his ex ask the court to make him pay her more spousal support as a result? A lot would depend on whether the court thinks that the recipient spouse contributed directly or indirectly to the payor spouse’s increase in income. What exactly constitutes “indirect” contribution to increases in income after separation can be tricky and depends a lot on the details of the case.

What if a recipient spouse’s actions (like staying at home to raise kids) have contributed to the increase in a payor spouse’s income?

For example, what if the recipient spouse stayed at home to raise the children during the relationship while the other payor spouse furthered his career? In the 2010 case of Sawchuk v. Sawchuk, the Alberta Court of Queen’s Bench decided that that was not enough. There, the parties were married for 24 years and upon separation, Mr. Sawchuk, working as an electrician, earned about 65K gross per year whereas Mrs. Sawchuk earned about 49K gross per year. Four months after the separation, Mr. Sawchuk went to work for someone else and his income increased to about 100K-110K gross per year. The court did not think that there was any evidence of what Mrs. Sawchuk did to specifically help Mr. Sawchuk in furthering his career; nor did it think that she gave up any of her own educational or career plans to help Mr. Sawchuk with his. As a result, Mr. Sawchuk’s spousal support payments did not increase despite his higher income after the separation.

Yet in the 2012 case of Shukalkin v. Shukalkina, the Alberta Court of Appeal, involving another long marriage where there was also a child, came to the opposite conclusion and Mr. Shukalkin’s had to pay his ex spousal support on the basis of him having 90K gross per year in income. He had achieved that income in 2012 but when the parties separated in 2003, he had apparently been earning at or less than 25K gross per year. That couple had separated just months after immigrating to Canada from Estonia.

In 2016, the Alberta Court of Appeal in Kohan v. Kohan gave at paragraph 38 of its decision a list of some of the things that judges should keep in mind when dealing with this issue (click on the following link to find it and scroll down)

http://www.canlii.org/en/ab/abca/doc/2016/2016abca125/2016abca125.html?searchUrlHash=AAAAAQAicG9zdC1zZXBhcmF0aW9uIGluY3JlYXNlIGluIGluY29tZQAAAAAB&resultIndex=1

Points to take away

If you are the spouse who may have to pay spousal support and your income might increase (or has already increased…) after separation in the future, your best option is to reach a settlement with your ex where each party gives up any and all claim to spousal support from the other regardless of what happens in the future. A court cannot make that kind of judgment so it can only be achieved through a negotiated settlement.

If you are the spouse who may be entitled to receive spousal support, knowing that your ex has the potential to earn more money in the future could be a strong bargaining tool in getting the best deal that you can get.

Good legal counsel is often crucial to negotiating favourable settlements. And, for either side, if negotiations fail and you have to go to court, you should have a good lawyer to make a strong case to the court on your behalf.

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