Michael Stangarone and Juanita Valencia | Apr 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

In the recent case of Hendriks v.Hendriks 2022 ONCA 165, the Court of Appeal addressed the issues of variation in spousal support and child support following a post separation increase in income, as well as child support payable for children above the age of majority pursuing post-secondary education.

The court’s decision is significant because it serves as a reminder that there is no guarantee that a spousal support recipient will share in a payor’s post-separation increase in income, and that table child support under the Child Support Guidelines is not presumptive for children above the age of majority.

The decision also serves as a reminder that determining whether a variation in spousal support obligations is warranted is a context-specific analysis and will not be solely determined by whether a term in the existing order contemplates variation.

Finally, the court’s decision reminds us of the importance of relying on adequate evidence when seeking a variation in support.

The parties were married for 18 years and separated in 2010. There were three children of the marriage. In May 2015, the parties entered into a consent final order that incorporated terms set out in minutes of settlement (“the Mossip Order”). The relevant terms of the Mossip Order were as follows:

• The father would pay ongoing child support for the three children based on an income of $78,528;
• The father would pay 75 percent of the children’s future s. 7 expenses; and
• The father would pay ongoing spousal support in the amount of $150 per month.

In 2018, the parties consented to the termination of child support for the eldest and middle children.In August 2018, the father moved to Qatar for his employment, and his income increased to approximately $214,000. The mother brought a Motion to Change. She sought increased spousal support based on her sharing in the payor’s post-separation increase, a variation of the termination date for the children and monthly child support for the adult children.

The mother's motion was dismissed. The mother appealed.

The motion judge determined that the father’s increase in income was not a material change in circumstances because, on the mother’s own affidavit evidence, it was in line with their expectations during the marriage when the father decided to obtain a master’s degree in social work. Moreover,the motions judge concluded that the increase in income was attributable to an intervening cause: the reorganization of the father’s employment arrangements, his new marriage, and his lifestyle changes, including his move to Qatar.

For these reasons, the motions judge held that the mother was not entitled to share in the post-separation increase.

This approach is in line with the general approach by Canadian courts, which is to treat post-separation increases in a payor spouse’s income as a matter of judicial discretion that must be exercised in the circumstances at hand and in light of the principles and objectives that govern spousal support. For example, in Thompson v. Thompson 2013 ONSC 5500, the court held at para.103 that “a spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases.” In other words, there is no presumption that the recipient spouse’s standard of living should increase post-separation only on account of the payor’s increased income.

Moreover, in most cases, the right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims for spousal support. The most critical factor in these cases is whether there is a sufficient connection between the recipient’s post-separation increase in income and the parties’ marriage and/or the actions and contributions of one recipient spouse on the other (see Thompson v. Thompson at para. 103 and Marinangeli v. Marinangeli [2003]O.J. No. 2819 (ONCA)).

The Court of Appeal held that the motion judge erred by failing to consider whether the mother faced a material change in circumstances. The court confirmed that a reduction or termination of child support constitutes a change in circumstances for the purposes of seeking a variation in spousal support. In this case, the fact that the father was no longer paying table support for three children constituted a change in circumstances for the purpose of seeking a variation order under s. 15.3(3) of the Divorce Act, and therefore satisfied the threshold for variation.

The court then had to determine what variation was required to be made. The court found that during their marriage and even after the separation, the mother had assumed the majority of the household and child-care responsibilities, which had impacted her ability to pursue her business and career.

However, because the motion judge found that the mother was not entitled to share in the father’s post-separation increase in income, the assessment of the appropriate variation had to be determined using the father’s income at the time of the Mossip Order, $78,528, and not his post-separation increased income. The court ultimately time-limited spousal support in the mid-range under the Spousal Support Advisory Guidelines based on that income level, with a termination date.  

In ordering a variation in spousal support in this case, the court confirmed that a variation in support may be ordered even when there is no term in the existing order/separation agreement/minutes of settlement that contemplates variation.

Finally, the court concluded that the motion judge was correct in declining to order table support for the adult children given the lack of evidence regarding their financial means and needs. The court reiterated that the onus is on the party seeking support to demonstrate that the adult child requires educational support, and that the insufficient evidence provided by the mother failed to discharge that onus.

However, the court left it open to the mother to apply for support in addition to the s. 7 expenses upon presentation of adequate evidence.

Michael Stangarone is a partner with MacDonald & Partners LLP where he practises exclusively in family law. Juanita Valencia is an associate at MacDonald & Partners LLP. Valencia obtained her law degree from Osgoode Hall Law school, where she completed an intensive program at Parkdale Community Legal Services and where she co-founded a student group for Latin American law students.

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