Canada: Your Ex Gets A Raise After You Divorce? You Might Be In Line For Tens Of Thousands More

Last Updated: April 29 2019
Article by Adam Black

One of the most controversial, difficult and most-litigated issues in family law across Canada is the extent to which a payer of spousal support will be required to share any post-separation increases in income with the support recipient. That issue was squarely before the BC Court of Appeal in a decision released on March 19.

In 2003, following a 17-year marriage, the couple in question separated. In 2004, the parties entered into a comprehensive separation agreement which resolved issues of child and spousal support and division of property.

At the time of the agreement, the husband was employed as an engineering technologist earning an income of $185,000. The wife was unemployed. The agreement required the husband to pay the wife spousal support of $1,400 per month. Spousal support was to be reviewed in 2007, three years after the agreement was signed. Notwithstanding the passage of three years, neither party sought to review spousal support and the husband continued to pay $1,400 per month.

In November, 2016, the husband applied to the court to terminate his spousal support obligation. By that time, he had paid spousal support to his then-former spouse totalling approximately $220,000 over the course of nearly 14 years.

The wife resisted the termination and sought to increase her spousal support retroactive to 2007, when spousal support ought to have been reviewed. The wife took the position that the husband's income had increased substantially since separation and the amount of spousal support payable to her ought to reflect his new income. According to her expert, the husband's annual income had increased to approximately $1.2 million as a result of his becoming the CEO of the company for which he worked at the time of separation.

At trial, the judge disagreed with both parties. Justice Ball of the British Columbia Supreme Court ordered the husband to continue to pay spousal support of $1,400 per month until October, 2021, at which time spousal support would terminate. The amount of support was not changed to reflect the substantial increase in the husband's income.

Underpinning Justice Ball's decision was his finding that there was no nexus between the husband's increased income and the arrangements or skills and abilities he developed during the marriage. In fact, notwithstanding the wife's role of caregiver for the parties' children throughout the relationship, Justice Ball found that the wife "made no contribution" to the husband's original training which occurred before the marriage and "made no contribution" to the business for which he worked.

Justice Ball noted that since the husband's career changed after separation, "his success or failure thereafter is of no relevance." Justice Ball found virtually no connection between the parties' marriage and the post-separation change in the husband's financial circumstances. In Justice Ball's words: "these are a totally different set of newly acquired executive skills and responsibilities of which (the wife) did not contribute to."

Both parties appealed from Justice Ball's decision.

While there were a number of issues before the British Columbia Court of Appeal, the trial judge's decision to deny the wife's claim to share in the husband's increased income was front and centre. Writing for the BC Court of Appeal, Justice Willcock found the trial judge was wrong when he determined that the wife should not benefit from the substantial increase in the husband's income. Justice Willcock canvassed the case law on whether post-separation increases income should be shared between former spouses by way of spousal support. In particular, Justice Willcock cited a 2010 decision of the BC Supreme Court (2010 BCSC 153) wherein Justice Punnett observed:

"The resolution of the issue of post-separation wage increases is clearly fact based. The principle that appears to emerge from current case authority is that the connection the increase in salary has to the recipient's contribution during the marriage is determinative. 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."

Justice Willcock rejected Justice Ball's reasoning, noting that it cannot be said that the husband's increased income through the change in his position at work is not connected to the wife's contributions during the parties' marriage. The wife and the husband "made a joint investment in one career" by having the wife "take on the bulk of the caretaking responsibilities with the couple's children" while the husband "pursued his career outside the home."

Because of the limited evidentiary record before it, the B.C. Court of Appeal was not in a position to determine the correct amount of support the husband should pay. That determination was remitted back to the trial court for determination on a full evidentiary record. In remitting the matter back, Justice Willcock provided the trial court with direction: "In re-considering the appropriate quantum of support some reference should be made to the guideline quantum and, in particular, the support recommended pursuant to the 'Without Child Support Formula' of the Spousal Support Advisory Guidelines."

The Spousal Support Advisory Guidelines are used throughout Canada to determine the quantum and duration of spousal support. If Justice Willcock's direction is followed and the husband's income is determined to be $1.2 million on the basis of a full evidentiary record, the starting point for a proper determination of spousal support may be upwards of $25,000 to $33,000 per month, for an indefinite duration.

This article was originally published in the National Post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions