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Hi, my name is Deleta Grandy and I am an associate with Feldstein Family Law Group.
In this session, I will be discussing how the amount of spousal support is determined, and specifically, how it is determined for high income earners. High income earners are those individuals whose income is $350,000.00 or higher.
Many family law practitioners would probably agree that entitlement to spousal support is one of the most fluid areas in family law, and there is a large amount of judicial discretion.
However, once entitlement to support has been established, the issue of determining the amount or “quantum” of support is much less fluid. This is because of the Spousal Support Advisory Guidelines or (“the SSAG”), which were adopted by the Court of Appeal in the case of Fisher v. Fisher in 2008. The Spousal Support Advisory Guidelines essentially takes the factors considered in determining entitlement, such as the duration of the relationship, and the income of the parties, and calculates a specified range of support that should be paid by a payor spouse.
It is important to note that because the Spousal Support Advisory Guidelines are not legislated or mandatory in law by any means, judges do have discretion to diverge from the SSAG. However, it seems that as a result of Fisher, virtually all Courts are now at least referring to the SSAG in their spousal support decisions, and diversions from the guidelines generally only occur in unique circumstances.
The SSAG include special provisions for high-income earners, and specifies a “ceiling” of $350,000.00. Essentially, if a support payor earns this amount or more, the core formula gives way to more judicial discretion. In effect, for payors making an income of or higher than $350,000.00, the standard fixed-percentage-of-income formula can be varied, meaning that the support payor would be paying a lesser percentage of his or her income.
Despite the fact that the SSAG clearly permit variation from the guidelines for incomes over the ceiling, the case law on this issue suggests that, where the payor’s income is close to the $350,000.00 ceiling, judges are hesitant to diverge too far from the SSAG. The factors a court will consider in determining the appropriate amount of support are: the amount of support the recipient should receive pursuant to the guidelines; the support recipient’s budget; the conditions, means, needs and circumstances of each spouse; whether the payor is also paying child support; and the duration of the relationship. However, where a payor’s income is far in excess of the ceiling, the courts seem to rely more heavily on the recipient’s budget, looking more to the recipient’s need. However, the Court still has discretion to follow the guidelines outlined in the SSAG, if deemed appropriate.
If you require further information regarding your rights and obligations as a support payor or recipient, please contact us to schedule a consultation at (905) 581-7222.
Thank you for taking the time to watch this presentation, and I hope that you have found it helpful. For more information about spousal support, please also visit our website.