Spousal support varied despite absence of terms in consent final order permitting it

The Ontario Court of Appeal has ruled that spousal support in a consent final order can still be subject to variation despite an absence of terms permitting it, since it could be treated as an application to vary under the Divorce Act R.S.C., 1985, c. 3.

In Hendriks v. Hendriks, 2022 ONCA 165, Stephen and Eleanor Hendriks separated in 2010. They entered into a consent final order in 2015 for spousal support and child support for their three children. In 2018, Stephen’s new employment in Qatar roughly tripled his income and Eleanor sought to vary spousal and child support.

The motion judge refused to grant Eleanor’s motions. She found that Stephen had in fact overpaid child support, since the support of the eldest and middle child was terminated by consent in 2018. She ruled that spousal support could not be altered because it was solely contractual in nature and the order did not permit variation. She also ruled that Stephen’s increase in income was in line with their expectations and thus not a material change in circumstances. Eleanor appealed these findings.  

The appellate court allowed the appeal in part.

The appellate court found that while there was an overpayment in child support, Stephen did not consider the youngest child, for whom he should have continued payment. The court found that the deductions from the overpayment were exhausted by January 2019 and Stephen did not resume payment until February 2020. Thus, Stephen owed child and spousal support for this 12-month period during which he failed to pay, said the court.

There was no basis to interfere with the motion judge’s conclusion that the increase in Stephen’s income was “attributable to an intervening cause, unrelated to the parties’ marriage,” said the court, as these findings were owed deference.

However, it was an error for the motion judge to hold that the order cannot be varied, because the motion could be aptly considered as an application to vary under the Divorce Act, said the court.

Further, the court ruled that the motion judge should have also conducted an analysis on the material change in Eleanor’s circumstances, since Stephen’s increase in income — while “sufficiently disconnected from the marriage” — may still be relevant in tempering any disadvantages still suffered by Eleanor. While both parents contributed to the household and childcare responsibilities, Eleanor bore a majority of these responsibilities that impacted her ability to advance her career — unlike Stephen, said the court.

However, the court also noted that while variation of spousal support was appropriate, it should not be indefinite. The court found that Eleanor’s income still increased after the consent final order, and she was pursuing her Bachelor of Arts degree.

“Given [Eleanor’s] means and optimistic future, indefinite spousal support would not be appropriate,” said the court in increasing spousal support but setting it at 108 months.