Let’s start with the Spousal Support Advisory Guidelines, also called the SSAGs, which the federal government released in 2008.
The SSAGs are used across Canada by judges, mediators and lawyers to calculate spousal support in various situations and provide a range of spousal support – in terms of both quantum and duration.
The SSAG’s Revised User Guide states at Chapter 11 that they are less helpful with incomes under $30,000 (called the “floor”) and incomes over $350,000 (called the “ceiling”).
Most judges have found that where the payor’s income is not too far above the ceiling (i.e. between $500,000 and $700,000), the SSAG formula ranges will often be used to determine the amount of spousal support.
In the case of Halliwell v. Halliwell, 2017 ONCA 349, the Ontario Court of Appeal confirmed that in determining spousal support for incomes over $350,000 per year the court must enter into an individualized, fact-specific analysis in fixing spousal support which must include an analysis of the effect of the equalization payment – which could be significant and affect spousal support. In that case, the court determined that the husband’s income should be set midway between the ceiling amount of $350,000 and his actual income of $1,000,000, setting the husband’s income for spousal support at $675,000 per year. In this case, the wife received an equalization payment of $3,047,061.
But some lawyers and judges have misunderstood Halliwell. That case does not stand for the proposition that the ceiling amount and actual income should be averaged. It supports an individualized process taking into account the equalization payment.
In fact, the order of analysis is, firstly calculate child support on the full income, secondly calculate the equalization payment, and finally calculate spousal support. This analysis was decided by the Court of Appeal in Plese v. Herjavec, 2020 ONCA 810. The Ontario Court of Appeal rejected the practice of defaulting to a triangulated mid-point income and confirmed that the approach to incomes beyond the ceiling should be individualized and fact-specific.
These are some cases that followed Halliwell and Plese.
In Dancy v. Mason, 2019 ONCA 410, the Court of Appeal upheld a motion judge’s decision to use the payor’s full income of $632,827 and confirmed that Halliwell permitted use of the payor’s full income over the ceiling.
In Lefebvre v. Lefebvre, 2020 ONSC 310, the court considered the relatively small equalization payment, and so determined that the full amount of the payor’s income would be used for spousal support purposes.
In Berta v. Berta, 2017 ONCA 874, the Court of Appeal upheld the trial judgement using the full income of $644,172, but set spousal support at the lower end of the SSAG range in light of the non-compensatory nature of the claim.
In Zapfe v. Zapfe, 2019 ONSC 4065, where the payor’s actual income was $2,090,000 per year in a non-compensatory case, the court used the SSAG to find a support figure near the mid-way point between $350,000 and $2,090,000.
In B.S. v. B.W., 2019 ONSC 2769, the court used a mid-point figure between the ceiling amount and the payor’s full income to address the compensatory, contractual and reduced need based elements of support.
In conclusion, the case-law illustrates that there is wide discretion in determining spousal support payable where the payor’s income is beyond $350,000 and each case is decided on its own unique facts.
Editorial Note: Originally published in 2023, this article outlines how spousal support is determined when a payor’s income exceeds the $350,000 SSAG ceiling. With courts continuing to rely on nuanced, fact-specific analysis in such cases, this breakdown of leading decisions remains an essential reference for family law professionals and high-income spouses navigating divorce.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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