Ontario court refuses to vary support based on post-separation income increase

Ontario’s top court has found that an ex-husband’s increase in income – resulting from his reorganized employment arrangements, his new marriage, and significant lifestyle changes – was not causally connected to his ex-wife to determine support.

In Hendriks v. Hendriks, 2022 ONCA 165, the parties were married for 18 years, had three children together, and separated in 2010. In 2015, they entered into a final consent order that directed the ex-husband, who was the respondent, in this case, to pay the following:

• $1,506 per month as ongoing child support for the three children, based on an income of $78,528;
• $3,108 as a one-time payment of retroactive child support;
• 75 percent of the children’s future s. 7 expenses;
• $4,000 as a one-time payment for retroactive s. 7 expenses;
• $33 per child per month as a contribution to the s. 7 expenses;
• $150 per month as ongoing spousal support, also based on the amount of income; and
• $3,000 as a one-time payment for retroactive spousal support.

In 2018, the ex-husband, accompanied by his middle child, moved to Qatar for his new employment, which increased his income to approximately $214,000.

The ex-wife, who was the appellant in this case, unsuccessfully brought a motion to vary child support and spousal support to reflect this post-separation increase in income. On appeal, she argued that the motion judge wrongly applied the law and misapprehended the evidence. The Court of Appeal for Ontario partly allowed the appeal.

The motion judge misapprehended the evidence when she found a child support overpayment of $36,000, which impacted her analysis of whether the ex-husband owed support for the youngest child between February 2019 and January 2020, the appellate court ruled. Thus, it fixed the child and spousal support arrears due for this period at $26,400.

The motion judge made further errors in analyzing the spousal support entitlement and the issue of whether there was a material change in circumstances, the appellate court held. Therefore, it varied spousal support to $1,500 per month for 108 months, retroactive to July 1, 2020.

Variation was appropriate because it would reflect the ex-wife’s economic disadvantages as the family’s primary caregiver, which would give her the financial security that she needed to complete her education and make herself competitive in the job market, thus promoting her self-sufficiency.

The appellate court said that there were no palpable and overriding errors that justified appellate interference in connection with the ex-husband’s post-separation increase in income and the children’s post-secondary education expenses.

The motion judge was entitled to find that the increase in income was attributable to an intervening cause unrelated to the parties’ marriage or to the roles they adopted during the marriage, the appellate court determined.

The appellate court noted that the final consent order already addressed the post-secondary expenses that the parties would share. The motion judge correctly concluded that there was not enough evidence to order support beyond the sharing of the s. 7 expenses, the appellate court concluded.