28 April 2017

Spousal Support in High Income Cases: Over $350,000

Payor income above the $350,000 ceiling

This week I am copying directly from the Department of Justice website because I really like their concise summary of this issue. What follows is a discussion about calculation of spousal support in high income cases.  The nugget at the end is this: the courts decide cases on the unique facts of each case, but the general trend is towards reliance on the range of payments provided for in the Spousal Support Advisory Guidelines.   SSAG


Karen F. Redmond, Family Law Lawyer


This is from the DOJ cite below:


Department of Justice


"In absolute numbers, there aren’t that many of these cases, but they are over-represented in the decided cases, partly because of the high stakes involved and partly because they test the outer limits of our thinking about spousal support. A number of these cases have made their way to the B.C. Court of Appeal: see Carol Rogerson and Rollie Thompson, “Complex Issues Bring Us Back to Basics: The SSAG Year in Review in B.C.” (2009), 28 Canadian Family Law Quarterly 263 at 283-86. B.C. cases still dominate the reported decisions, as many of these high-income cases in Ontario are resolved by arbitration or mediation-arbitration.
There are some clear principles enunciated in the case law, even if the actual outcomes are discretionary and sometimes conflicting. In J.E.H. v. P.L.H., 2014 BCCA 310, leave to appeal to SCC refused [2014] S.C.C.A. No. 412, there is a careful review of the law for cases above the ceiling, where some of these principles are stated.
  • The formulas for amount are no longer presumptive once the payor’s income exceeds the “ceiling”.
  • The ceiling is not an absolute or hard “cap”, as spousal support can and usually does increase for payor incomes above $350,000. 
  • The formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts.
  • Above the ceiling, spousal support cases require an individualized, fact-specific analysis. It is not an error, however, to fix an amount in the SSAG range, as was done in J.E.H. v. P.L.H., above. Evidence and argument are required.
  • Where the payor’s income is not too far above the ceiling, the formula ranges will often be used to determine the amount of spousal support, with outcomes falling in the low-to-mid range for amount. How far is “not too far above” is still not clear. Somewhere between $500,000 and $700,000, it seems.
  • Once the payor’s income is “far” above the ceiling, then the amount of support ordered will usually be below the low end of the SSAG range, but SSAG ranges are still calculated and sometimes the outcome will fall within the SSAG range.
In light of these principles, it is critical that counsel do SSAG calculations even in high income cases. It is wise to calculate the ranges for alternative income levels:  for the $350,000 ceiling (as a minimum) and for the full income (as a maximum), as well as for a range of intermediate incomes (to assist the court in triangulating an outcome). For a good example of such alternative calculations, see Saunders v. Saunders, 2014 ONSC 2459.
A number of the reported high income decisions involve interim or temporary support awards. Interim outcomes are more likely to fall within the formula range, as the goal in the interim period is to maintain the financial status quo: Cork v. Cork, 2013 ONSC 2788. In some of these cases, the estimate of the payor’s income will be low, pushing the amount higher in the range to adjust: Saunders v. Saunders, above; Loesch v. Walji, 2008 BCCA 214.
  • For incomes not too far above $350,000, courts frequently order an amount at the low end of the SSAG range for amount (payor’s income noted for each): Ponkin v. Werden, 2015 ONSC 7466 ($498,828, then $406,507); Stober v. Stober, 2015 BCSC 743 ($600,000); Piche v. Chiu, 2015 BCSC 335 ($465,000); Droit de la famille – 151740, 2015 QCCS 3284 ($375,000);  Cork v. Cork, 2014 ONSC 2488 ($562,000, final); C.E.A. v. B.E.A., 2014 BCSC 1500 ($592,122); Dymon v. Bains, 2013 ONSC 915 ($550,000); D.L.D. v. R.C.C., 2013 BCSC 590 ($652,000); Perry v. Fujimoto, 2011 ONSC 3334 ($353,000); Trombetta v. Trombetta, 2011 ONSC 394 ($660,000); and Teja v. Dhanda, 2007 BCSC 1247, appeal partly allowed on other issues, 2009 BCCA 198 ($425,000).
  • Not all of these cases end up at the low end: J.E.H. v. P.L.H., 2015 BCSC 1485 ($650,000, mid, variation); T.T. v. J.M.H., 2014 BCSC 451 ($597,000, mid-high); J.R. v. N.R.F., 2013 BCSC 516 ($471,814, mid-high); Abelson v. Mitra, 2008 BCSC 1197 ($355,000, mid-SSAG); and Y.J.E. v. Y.N.R., 2007 BCSC 509 ($602,400, mid-SSAG). In some jurisdictions, below-SSAG amounts are ordered even for these incomes, e.g. Babich v. Babich, 2015 SKQB 22 ($746,000, well below SSAG) and Milton v. Milton, 2008 NBCA 87 ($500,000, below SSAG).
  • For incomes far above the ceiling, the majority of outcomes wind up below the SSAG ranges, sometimes well below at the highest income levels: Volcko v. Volcko, 2015 NSCA 11, leave to SCC refused [2015] S.C.C.A. No. 141 ($1,248,756); J.L.A. v. M.J.G.G., 2014 BCSC 1391 ($831,648); S.R.M. v. N.G.T.M., 2014 BCSC 442 ($900,000); Frank v. Linn, 2014 SKCA 87 ($1,211,828); Margie v. Margie, [2013] O.J. No. 6193 (S.C.J.) (more than $1 million); Goriuk v. Turton, 2011 BCSC 652 ($9,740,000); T.N. v. J.C.N., 2013 BCSC 1870 ($1,163,648, custodial payor); Breed v. Breed, 2012 NSSC 83 ($1,186,585); Dobbin v. Dobbin, 2009 NLUFC 11 ($1.5 million); and Dyck v. Dyck, 2009 MBQB 112 ($3,045,205).
  • Even in cases far above the ceiling, however, some courts have fixed amounts within the SSAG range for high incomes: Saunders v. Saunders, above ($1 million, high SSAG, income estimate low); J.E.H. v. P.L.H., above ($1 million, mid-SSAG); B.L.B. v. G.D.M., 2015 PESC 1 ($1,069,724, low SSAG); Blatherwick v. Blatherwick, 2015 ONSC 2606 ($1.4 million, high SSAG); T.N. v. J.C.N., 2015 BCSC 439 ($982,626); Williams v. Williams, 2015 BCSC 112 ($1.2 million, mid-SSAG): K.R.M. v. F.B.M., 2013 BCSC 286 ($895,898, high SSAG); Elgner v. Elgner, [2009] O.J. No. 5369 (S.C.J., leave to appeal denied, 2010 ONSC 1578 (Div.Ct.) ($2.9 million, low SSAG); Loesch v. Walji, 2008 BCCA 214 ($1.6 million, husband’s income higher in past, spousal support $50,000/mo, higher than high end SSAG of $35,000/mo); and S.O. v. C.S.O., 2008 BCSC 283 ($909,569, low SSAG).
  • In some high-income with child support formula cases, courts have calculated the table amount of child support on the full payor’s income and then calculated the formula range for a gross payor income of $350,000 for spousal support purposes: J.W.J.McC. v. T.E.R., 2007 BCSC 252 and J.E.B. v. G.B., 2008 BCSC 528 (Master). Remember that if you do this hypothetical calculation for the spousal support range, it is critical that you use the child support amounts appropriate for an income of $350,000 too, and not the actual higher amount of child support (an error made in the otherwise careful analysis in Dickson v. Dickson, 2009 MBQB 274). See the discussion of two incomes under “Income” above.
Some commentators have expressed concern that there is too much defaulting to the formula range in high income cases, but no such pattern emerges from the mass of case law reviewed above. Individual high-income cases can attract considerable legal attention, but the wide discretion for these very high incomes will inevitably result in divergent and unpredictable outcomes. High income cases do not pose technical issues that can be solved by any set of guidelines, but raise fundamental theoretical questions about the rationale and purpose of spousal support."


As always, get legal advice if you need it.

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