What is the relevant consideration for a lump sum of spousal support awarded to a payor who has increased her income significantly after separation?

In considering this issue, the starting point is Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, where the income of a payor spouse increased dramatically after the parties separated. This case was primarily concerned with the issue of child support, where the current income of the payor- that is to say, the post-separation income of the payor- is the relevant consideration. The issue of spousal support was secondary, but it is important to note that the court made no distinction between post-separation income and income at the time of separation in awarding a lump sum of spousal support to the wife. The husband’s circumstances at the time of the trial were the relevant reference for determining both child and spousal support.

However, most cases that have considered the payor spouse’s post-separation income as the basis for determining spousal support have done so on the basis that the payee spouse contributed to the career advancement of the payor spouse, or because skills or credentials were developed by the payor spouse during cohabitation: see for example Fletcher v. Fletcher, 2003 ABQB 890.

Other cases have rejected the view that post-separation income is necessarily determinative for spousal support calculations. In Dextraze v. Dextraze, 2004 CarswellBC 287, 2004 BCSC 215 at para. 40, the court determined that the fact that a spouse’s ability to pay has increased since the settlement, does not, in itself, constitute a basis for an increase in spousal support. In Rozen v. Rozen (2003), 37 R.F.L. (5th) 205, 2003 BCSC 973, the court also refused to increase a wife’s support on the basis of substantial increases in the husband’s income following their separation because the court considered that the additional income was not related to the breakdown of the marriage or to the sacrifices of the wife during their marriage. Instead, the court found that the increase occurred because of “a re-organization of [the husband’s] accounting firm and additional work being required of him.” (at para. 17) In other words, the court was not satisfied that the wife had made a sufficient contribution to justify sharing in the increased post-separation income.