By Marian Gage
We should talk more about high income spousal support cases.
I’m not talking about the cases where a support payor earns an income just above the $350,000.00 “ceiling” set out in the Spousal Support Advisory Guidelines. I’m talking about cases where a person with a spousal support obligation earns more than $1 million.
I’m really talking about cases where a support payor earns substantially more than $1 million.
Thanks to the Spousal Support Advisory Guidelines: The Revised Users Guide and the reported cases we know a few things:
- The ranges set out in the Spousal Support Advisory Guidelines aren’t appropriate in these cases, although it’s worth doing the relevant calculations to see the numbers the SSAGs produce;
- In most cases the spousal support payable in these cases is well below the SSAG ranges that would be calculated if the SSAGs were applied;
- In some cases courts have applied the SSAG ranges;
- As in all cases, but especially in high income cases where equalization payments will also (likely) be substantial, we need to take the recipient’s property settlement into account before calculating support; and
- It’s all very unpredictable.
We are told that these cases are not common. I practice in Oakville, where high incomes are not all that uncommon either. I suspect a lot of families choose to keep their family matters out of the public, over-burdened court system whenever they can. This means that the cases that will develop the precedents for these support issues are few and far between.
Is there a formula we can apply to high income cases? The short answer is no.
The most recent high-profile-ish case on the matter was a Court of Appeal case reported last year when the Court calculated the half-way point between the payor’s three-year average income of just over $1,000,000.00 and the $350,000.00 “ceiling” in the SSAGs and used that number ($675,000.00 according to the Court of Appeal) as the income on which the payor’s support would be calculated under the SSAGs.
Is that the way we should calculate support in high-income cases? Probably not. We can’t just follow this model and treat it like a “formula” that will allow us to get back to the comfort and predictability of the SSAGs, simply applied to a reduced income. That can’t be what we are supposed to do in all high-income cases, even if the result makes sense for the family in some cases.
We know we must take a fact-based, interests-based approach to these discussions when we are working with these families. A Collaborative Process, or mediation with an Accredited Family Mediator, where an experienced financial professional can assist as a neutral, can go a long way in helping high income families determine the most suitable outcome, using what we know (see above) as a starting point.
Marian Gage is a Collaborative Family Lawyer, an Accredited Family Mediator (OAFM), a Certified Specialist in Family Law (LSO) and a partner at Berry Gage LLP
Marian G. Gage, B.J., LL.B., Acc.FM (OAFM), CS (LSUC)
Cert. Specialist in Family Law
165 Cross Avenue Suite 301
Oakville, Ontario L6J 0A9
Tel: 905-338-7941 ext 229