Were you living an affluent lifestyle prior to separating from your spouse and now find yourself without the ability to do so post-separation? If so, you may be wondering whether obtaining spousal support to maintain such a standard of living is possible.
The short answer is as always- it depends.
A large disparity in the income between you and your spouse is not in itself enough to entitle you to spousal support. While entitlement is commonly found in relationships where income disparity exists, the recipient spouse must independently have a compensatory, non-compensatory or contractual entitlement to this support. For a full description of the different grounds for entitlement to spousal support, see our Blog post about the subject here.
Assuming that you do have entitlement to claim spousal support, the quantum of support is determined differently depending on how much money your spouse makes per year.
Where your Spouse earns less than $350,000 per Year
For those payors who make less than $350,000, a recipient’s spousal support amount is determined pursuant to the Spousal Support Advisory Guidelines (the “SSAGs”). This is a formula that calculates low, medium and high ranges of spousal support depending on whether child support is being paid, the length of the marriage and the age of the payor and recipient.
Where your Spouse earns $350,000 or More per Year
If your spouse makes $350,000 or more, the rules are more imprecise. The SSAGs treat $350,000 as the “ceiling” income, meaning that the Court has discretion to determine the appropriate amount of spousal support without resorting to the SSAG formula once a payor’s income hits the $350,000 threshold. This is because implementing the SSAG formula on very large incomes could produce support amounts that are unreasonably large for spousal support purposes.
Yet, just because the Court does not have to use the SSAG formula, does not mean that they will absolutely decline to do so. For example, in Berta v. Berta 2017 ONCA 874, the Court awarded the wife the low range ($13,700/month in this case) of the SSAGs on her husband’s income of over $650,000 and her income of around $280,000. Even though her own income was relatively large, the Court determined she had a needs-based claim for spousal support because she could not otherwise sustain the extravagant lifestyle she had during the marriage.
The key point to identify here is that the Court seeks to maintain the kind of lifestyle that existed during the marriage. So, if your luxury vacations and expensive shopping trips only started after your separation, you may have a difficult time convincing a court that you should be awarded enough spousal support to continue those activities.
Outside of the SSAGs, the Court might take a needs and means based approach to assess your spousal support claim. This includes evaluating your own ability to earn enough income to maintain your pre-separation lifestyle as well as the amount of money you need to meet your current and future expenses. This method was adopted in Plese v. Herjavec 2020 ONCA 810 where the husband earned over $5.5 million while his wife did not earn an income as a stay-at-home mother. The court evaluated the wife’s monthly budget which included private school fees and maintenance expenses for their $17.5 million Muskoka cottage among other costs. They determined she required spousal support of $125,000 per month to sustain the lifestyle that she and the children were used to before the separation. It should be noted that this amount was far less than any calculation of support using the SSAGs.
Regardless of the method used to calculate your spousal support, the duration of that support should always be kept in mind. Even an indefinite award of spousal support does not mean forever, and eventually your support may be reduced or terminated if the court so determines.
As such, even those with an ironclad entitlement to a “luxury” amount of spousal support should still prepare for the possibility that they may one day have to do without it.