Blog | January 29, 2019

“High Income” Families and Spousal Support

Marian Gage
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
Fax: 905-844-9765

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