Spousal support and imputation of income

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ukcad

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Hi. Im in the middle of a divorce dispute with my ex. I moved here to her home town about 8 years ago from the UK. We have two kids 15 and 7. I pay her child support and spousal support voluntarily without any written agreement in place as per both our earning last year. This has been ongoing for 18 months now. Mediation failed

My ex works part time for the city but is a qualified school teacher in ontario. She had some supply teaching experience and full time overseas experience but no full time in ontario.

If she were to work full time as a teacher in ontario I absolutely would not have to pay spousal support. She does not want to work full time as a teacher even tho there are many schools in the area looking for teachers.

Without overtime I make about 100k a year but in the past I have made upwards of 160k with overtime. I have not worked overtime for some time as it would mean I would miss out on the already limited time I have with my kids. This last two years I have made 140k. I have offered her 10 years of spousal support based on the calculation from the divorcemate App.

If she doesn't want to go back to teaching and I offer her to settle with 10 years based on 100k plus 30k of overtime. The App says the maximum duration is 13 years and the lump sum was calculated at 10 years.

Is it fair for her to demand i work more overtime while she insists on never teaching and remaining in a lesser paid job?

Is there a timeframe that can be applied to her getting into teaching?

Any advice is greatly appreciated
 
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First, these questions are difficult to answer definitively because spousal support—unlike child support—is highly fact-specific and discretionary, turning on the unique circumstances of each case.


Based on my experience, here’s what I would do.

I would send a position letter accompanied by an Offer to Settle that does the following:

  1. Fix your income for spousal support purposes at $115,000 as of the date of separation.
    Any additional overtime or personal sacrifices you have made post-separation should not be subject to sharing. Your ongoing income for spousal support purposes should remain at $115,000. The letter should expressly address the factors set out in Thompson v. Thompson and explain how they apply to your circumstances.
  2. Propose a step-down spousal support structure tied to her transition to full-time employment within 18 months.
    I would compare potential earnings from a full-time role at approximately $26–$28 per hour to her current role and a teaching role, then average those figures. She would have an 18-month period to obtain full-time employment. At that point, spousal support would step down. You would pay that reduced amount for six years, followed by a further step-down for the final two years.

    By then, she will have had three years in total (18 months plus an additional 18 months) to leverage her existing skills and education, upskill if necessary, and secure full-time employment. This is more than reasonable. If she chooses not to do so, that should not be your responsibility.
  3. Advance the position that she is not entitled to the maximum duration of spousal support.
    Presumably, she is relatively young, the marriage was of a limited duration, and she has a clear ability to secure full-time employment. The marriage did not impair her earning capacity, and therefore a maximum-duration spousal support order is not appropriate.

I would give her 30 days to accept the Offer to Settle, failing which you would proceed with filing.

Finally, her income level also affects child support. Your court position should include a review at 18 months to impute income for both child support and spousal support if she has not made reasonable efforts to obtain full-time employment

Thompson v Thompson 2013 ONSC 5500 (CanLII),

The courts also consider whether the increase in income is primarily attributable to the payor’s decision following the separation to increase their work effort through means such as working more overtime, accepting work that is more lucrative but involves significant personal sacrifices or taking on extra jobs. These types of circumstances may support no sharing, or only partial sharing, of income increases following the termination of the relationship (Chalifoux, at paras. 25-26; Tscherner; Black v. Black, 2015 NBCA 63 (C.A.); Mahoney v. Tanner, 2016 ONSC 7082 (S.C.J.); Kozak).
 
ukcad said:
Hi. Im in the middle of a divorce dispute with my ex. I moved here to her home town about 8 years ago from the UK. We have two kids 15 and 7. I pay her child support and spousal support voluntarily without any written agreement in place as per both our earning last year. This has been ongoing for 18 months now. Mediation failed

My ex works part time for the city but is a qualified school teacher in ontario. She had some supply teaching experience and full time overseas experience but no full time in ontario.

If she were to work full time as a teacher in ontario I absolutely would not have to pay spousal support. She does not want to work full time as a teacher even tho there are many schools in the area looking for teachers.

Without overtime I make about 100k a year but in the past I have made upwards of 160k with overtime. I have not worked overtime for some time as it would mean I would miss out on the already limited time I have with my kids. This last two years I have made 140k. I have offered her 10 years of spousal support based on the calculation from the divorcemate App.

If she doesn't want to go back to teaching and I offer her to settle with 10 years based on 100k plus 30k of overtime. The App says the maximum duration is 13 years and the lump sum was calculated at 10 years.

Is it fair for her to demand i work more overtime while she insists on never teaching and remaining in a lesser paid job?

Is there a timeframe that can be applied to her getting into teaching?

Any advice is greatly appreciated
Click to expand...

Threshold Misclassification​

The opening premise misidentifies how spousal support analysis is triggered.
“If she were to work full time as a teacher in ontario I absolutely would not have to pay spousal support.”
OP
Click to expand...
This statement assumes that employability or potential employment extinguishes entitlement. That is a category error. Courts do not treat employability as a threshold condition. Entitlement is assessed first, on compensatory and non-compensatory grounds arising from the marriage and its breakdown. Capacity to earn affects quantum and duration only after entitlement exists.

Reciprocity Fallacy​

Spousal support is not governed by reciprocal post-separation effort.
“Is it fair for her to demand i work more overtime while she insists on never teaching and remaining in a lesser paid job?”
OP
Click to expand...
This frames spousal support as a bilateral performance obligation, where one party’s effort is conditioned on the other’s effort. Courts do not analyze spousal support through reciprocity or fairness balancing between former spouses. Post-separation effort is not a baseline. It is a contextual modifier applied only within an established entitlement analysis.

Sequencing Failure​

The argument jumps to quantum and duration without establishing entitlement.
“I have offered her 10 years of spousal support based on the calculation from the divorcemate App.”
OP
Click to expand...
This collapses the analytical sequence. Duration and amount are not independently selectable inputs. They are outputs that follow findings on entitlement and income. Advisory guideline ranges do not create entitlement and do not operate in the absence of a prior entitlement determination.

SSAG Reification Error​

Guideline arithmetic is being treated as a rights-conferring mechanism.
“The App says the maximum duration is 13 years and the lump sum was calculated at 10 years.”
OP
Click to expand...
This treats guideline software as determinative. The Spousal Support Advisory Guidelines are expressly non-binding and apply only after entitlement and income findings are made. “Maximum” ranges do not imply entitlement, obligation, or enforceability.

Post-Separation Income Misuse​

Overtime and reduced work effort are being elevated to gatekeeping status.
“She believes I should be back working these crazy hours.”
OP
Click to expand...
Post-separation income changes, including overtime or reduced work effort, are assessed contextually once entitlement exists. They do not determine whether spousal support is payable. Elevating them to threshold criteria misstates their legal function.

Diagnostic Summary​

The argument fails structurally, not factually.

The reasoning relies on:
  • Employability as a disentitlement trigger
  • Reciprocal effort as a governing principle
  • Guideline arithmetic as entitlement proof
  • Quantum reasoning without entitlement sequencing
Each of these assumptions is rejected by the entitlement-first framework courts apply. Correcting facts does not cure a misclassified analytical frame.

Boundary Clarification​

This forum cannot substitute for legal representation in an active dispute.

The issues raised engage entitlement, variation risk, and guideline application in a live proceeding. Those determinations are fact-specific and discretionary. They cannot be resolved through forum analysis or software outputs.

You should retain and rely on qualified legal counsel for advice specific to your case.
 
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