The parties enjoyed a prosperous lifestyle in a relationship that lasted over 15 years. The husband has an annual income of $20.5 million, while the wife (59) has been living as a homemaker for the past 11 years. She is unlikely to ever obtain outside employment. After the parties separated, the husband provided $1,759,792 to the wife, with $407,250 paid as temporary without prejudice spousal support.
Initially, the husband paid $12,000 per month in spousal support to the wife, which then increased to $20,000 per month by August 2018, all of which was pursuant to their interim agreements. The wife brought a motion for interim spousal support, which was heard by Justice Kurz. For the purposes of this motion, the parties agreed to use an average income figure of $2,090,000 for the husband and to impute an annual income of $30,000 to the wife.
As a result of the husband’s high level of income, which exceeds the $350,000 ceiling under the Spousal Support Advisory Guidelines (SSAG), Justice Kurz had to consider whether the SSAG applied, and, if so, whether the SSAG calculations should be based on an income figure partway between the husband’s income and the ceiling.
The starting point for determining income under the SSAG is the definition of income under the Federal Child Support Guidelines. In this case, the parties already agreed that the husband was above the SSAG ceiling.
The SSAG contains both a “ceiling” and a “floor” that delineates the upper and lower boundaries beyond which the SSAG might not apply. When a party’s income exceeds the SSAG ceiling, determining the amount of spousal support involves a case-by-case consideration of the facts and the increased application of judicial discretion. Pursuant to Halliwell v. Halliwell, when dealing with incomes above the $350,000 SSAG ceiling, an appropriate range of income inputs for the SSAG calculation is anywhere from the ceiling figure to the actual income figure. There are two important factors that can influence the range of income figures: the spouse’s entitlement and the amount of the equalization payment. Furthermore, in Dancy v. Mason, the Ontario Court of Appeal held that in appropriate circumstances, a figure between the ceiling and the payor’s actual income can be used as a basis for the SSAG calculations.
Based on an income of $2,090,000, the monthly support payments suggested by the SSAG ranges from $38,625 at the low end, $45,062 at the midpoint, and $51,500 at the high end. The wife argued that spousal support should be awarded at $53,000 per month, which is greater than the high end of the SSAG calculations based on the husband’s actual income.
To resolve the issue, Justice Kurz examined the wife’s expenses and budgets to determine whether they are reasonable in the content of a wealthy but financially dependent spouse. The wife’s budget was then compared to the husband’s budget in order to compare their respective lifestyles and net disposable incomes. Justice Kurz was also required to consider the fact that the wife had already received a substantial advance against equalization, which will financially assist her new living situation.
In consideration of these factors, including the length of the relationship, the nature of the wife’s support entitlement, the equalization already paid and yet to be paid, as well as the relative budgets of the parties, Justice Kurz held that an interim spousal support away in the amount of $30,000 per month is reasonable and appropriate. This award increases the wife’s monthly support by 50%.
When the payor’s income exceeds the $350,000 ceiling, judges can use their discretion to arrive at a spousal support award that falls outside the range suggested by SSAG calculations.
Do You Have Questions About the SSAG or Spousal Support?
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