Revisiting Spousal Support Obligations in Light of Material Change

Entitlement to, and the quantum of, spousal support is generally determined at the time of a divorce proceeding. However, life is full of change, and the circumstances that were applicable to the parties at the time of the divorce may diverge considerably after the fact. One party may lose the ability to work or secure a significant increase in salary. Revisiting the terms of a support award (or lack of an award, as the case may be) may become necessary months or years down the road. In a recent decision by the Court of Queen’s Bench of Alberta, the court was asked to consider just such a scenario.

The Background Facts

The couple had married in 1985 and separated twenty years later. The couple officially divorced in 2010. At the time, the wife claimed entitlement to spousal support. The court found that she was, in fact, entitled to support, for the following reasons:

• The wife’s primary role during the course of the marriage was to care for the home and the couple’s five children;
• The couple was married and cohabitated for a significant period of time;
• The wife retained primary custody of two children who remained at home and who the husband rarely saw;
• The husband enjoyed an economic advantage in that he had work opportunities with his family of origin, while the wife was forced to start from scratch in the workforce; and
• While the wife had managed to secure work as a courier post-separation, the job was physically demanding and it was unlikely she would be able to continue in the role beyond a certain age due to physical limitations.

Despite the wife’s entitlement to support however, the court did not award a support amount. At the time, the couple had nearly equal salaries, and there was no available fund from which the husband could pay a lump sum. As such, the court did not award spousal support at the time of the divorce despite the finding that the wife was entitled to it.

A Change in Circumstances

In 2018, the wife brought a new application for spousal support in light of changes to her former husband’s financial circumstances. Two years post-divorce, the husband had secured work as a field sales representative for an oil company, and his income had significantly increased as a result. Due to illness, the wife was only able to work part-time, and her income remained approximately what it had been at the time of the divorce. Given the disparity in the parties’ income and the finding that the wife had been entitled to support at the time of the divorce, the wife sought spousal support retroactive to January 1, 2015.

Taking into account the Spousal Support Guidelines and the incomes of the parties, the court found that the wife was entitled to support in the amount of $1,500 per month. The retroactive sum owed by the husband amounted to $85,500. Rather than demanding a lump sum payment of that amount, the court ordered a total monthly payment of $2,000, with $500.00 going toward the accumulated total owed to date.

Lack of Transparency

It is noteworthy that the husband’s income had likely increased significantly as far back as 2012, however, he had failed to provide tax documentation for the years 2012-2015. The court noted that the wife was likely owed support dating further back than January 2015, but since she had not requested it, support was only determined as of that date.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to support awards following the breakdown of a relationship. We will work with you to ensure that you receive a support award that accurately reflects the true financial positions of the parties. Contact our office today by calling us at 403-910-3000 or contact us online.