MEMO TO:
Doble & Doble LLP
RESEARCH ID:
#400027332abc88
JURISDICTION:
Ontario, Canada
ANSWERED ON:
December 11, 2020
CLASSIFICATION:
Family law

Issue:

For the purposes of spousal support, under what circumstances is "triangulation" relevant in applying the Halliwell (ONCA 2017) analysis for post-separation income over $350,000?

Facts:

The parties were married for 17 years and separated in 2013.

Mother had a career as a teacher which she gave up for the 3 kids. Father got a better paying job as a physician but left his family behind in Western Canada. Mother was told by a Case Conference judge she had to do her best to become self-supporting. Instead she spent most of the past 7 years doing either nothing or getting a third BA (this one in psychology). She is now doing substitute teacher and tutoring work at less than $20,000/year. The order states that she is to be imputed at minimally $50,000/year income currently.

Conclusion:

Halliwell v. Halliwell, stands for the proposition that in cases where a party’s income exceeds $350,000, the formulas for setting the amount of spousal support in the Spousal Support Advisory Guidelines (SSAG) are not presumptive, and spousal support can increase above this ceiling. Once the payor’s income exceeds the ceiling amount, the formulas are not to be applied automatically, but rather an “individualized, fact-specific analysis” must be undertaken. (Halliwell v. Halliwell).

In cases where a payor earns more than $350,000, in addition to the low, mid-point and high-end amounts suggested by the SSAGs, there is also a range of possible appropriate payor income inputs. The court has discretion as to whether or not to include the payor's total income in determining the amount of spousal support that should be paid (Halliwell v. Halliwell; Dancy v. Mason).

A number of cases involving spouses with an annual income greater than $350,000 have applied the individual analysis approach from Halliwell in determining the amount of spousal support that is owed from the higher-earning spouse to the lower-earning spouse. In some of these cases, the SSAGs were applied to the payor's actual income in order to set the level of support, while in other cases, the courts have imputed a different income to the payor and/or deviated from the SSAGs.

In Fox v. Fox, the Court held that the mid-range of the SSAGs was the appropriate quantum of spousal support and took into account: the length of the marriage, the needs of the wife, the ability of the husband to pay support, the strength of the wife's compensatory claim favour an award in the high end of the range, and the work incentive for the payor, taking into account his age and health. (Fox v. Fox).

In Lefebre v. Lefebre, the Court held that although the husband's income was over $350,000, the case did not warrant a consideration of support based other than on the SSAG range. The Court noted that the wife was receiving an equalization payment, but it was not so large so as to warrant a consideration of support based other than on the SSAG range. The Court ordered the husband to pay spousal support to the wife at the high end of the SSAG range. (Lefebre v. Lefebre).

In Chibante v. Chibante the Court awarded support within the SSAG range and noted that the couple was married for over 26 years, raised two children, and built and co-owned a business. The Court stated that both ought to benefit from that business, both in the form of income taken from it and in the form of its capital. At the same time, care must be taken not to make the award too high such that business operations are hindered. (Chibante v. Chibante).

In Berta v. Berta, the Court of Appeal upheld the trial judge's decision to apply the low end of the SSAG when calculating the husband's support obligation. The ONCA noted that deference to the decision of trial courts in determining the quantum of support is required and this deference is augmented for payor incomes over $350,000 where the SSAG suggests “pure discretion” as one of two possible approaches to determining the quantum of support. (Berta v. Berta).

In Zapfe v. Zapfe, the Court awarded spousal below the low end of the SSAG of the payor's agreed upon income of $2.9 million, but noted that the support order was just over the high end of the mid-way point between $350,000 and $2.9 million. The Court noted that the ordered support was equal to Martin’s present budget, exclusive of taxes and support payments. (Zapfe v. Zapfe).

In B.S. v. B.W., the ONSC attributed income of approximately $600,000 to the husband for support purposes. The Court noted that this figure was at the mid-point between the $350,000.00 ceiling and the husband's full imputed income of approximately $865,000. The Court held that maintaining a low-point of range generated by this income fairly achieved the desired effect of providing for both compensatory and non-compensatory aspects of support: (B.S. v. B.W.).

In Plese v. Herjavec, the Court awarded spousal support of $125,000/month. That amount was significantly lower than any of the SSAGs scenarios. The Court stated that this amount was a reasonable balancing of the economic consequences of the end of the marriage, coupled with reasonable compensation for the wife, over and above simply meeting her monthly needs. In coming to this conclusion, the Court also took into account the ongoing capital positions of each of the parties. (Plese v. Herjavec).

Law:

Halliwell v. Halliwell, 2017 ONCA 349 (CanLII) stands for the proposition that in cases where a party’s income exceeds $350,000, the formulas for setting the amount of spousal support in the Spousal Support Advisory Guidelines (SSAG) are not presumptive, and spousal support can increase above this ceiling. Once the payor’s income exceeds the ceiling amount, the formulas are not to be applied automatically, but rather an “individualized, fact-specific analysis” must be undertaken:

4. Application of the SSAGs formula to income above the ceiling

[106] The appellant contests the trial judge’s use of the SSAGs formula to fix a spousal support amount of $29,000-30,000 per month based on his imputed income of $1,000,000. He argues that while the trial judge recognized that for income above $350,000, an “individualized, fact-specific analysis” is required, he failed to undertake such an analysis.

[107] I agree. An individualized, fact-specific analysis requires a consideration of the effects of the equalization payment. The trial judge failed to fully consider the effects of the equalization payment, beginning with the question of entitlement. In so doing, he erred in principle.

Entitlement

[108] The application of the SSAGs formulas, whether under or above the ceiling, requires a preliminary consideration of entitlement. The entitlement question then informs the approach to be taken in applying the SSAGs.

[109] As stated at s. 3.2.2. of the SSAGs:

The Advisory Guidelines do not deal with entitlement. … The Advisory Guidelines were drafted on the assumption that the current law of spousal support, post-Bracklow, continues to offer a very expansive basis for entitlement to spousal support. Effectively any significant income disparity generates an entitlement to some support, leaving amount and duration as the main issues to be determined in spousal support cases. … The basis of entitlement is important, not only as a threshold issue, but also to determine location within the formula ranges or to justify departure from the ranges as an exception. [Emphasis in original.]

[110] It is important to note that s. 3.2.2 recognizes that entitlement plays two different important roles in determining spousal support. First, entitlement is a threshold issue. Second, entitlement determines location within the formula ranges or to justify departure from the ranges.

[...]

Entitlement Application of the SSAGs Formula

[115] However, as I have noted, entitlement considerations must also inform the application of the SSAGs formula. The trial judge did not do this. After quoting relevant case law and legislative provisions about entitlement to spousal support, the trial judge determined the appellant’s imputed income. He addressed certain issues raised by the parties – such as double dipping – but he undertook no analysis of entitlement in this section of his reasons. After acknowledging the existence of the $350,000 ceiling, the trial judge chose to apply the SSAGs formula based on the full amount of the appellant’s imputed income.

[116] The effects of the equalization payment had to inform the trial judge’s approach to income levels in this case. Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine location within that range.

[117] The SSAGs provide at s.11.1 that after the payor’s gross income reaches the ceiling of $350,000, the formulas can no longer be applied automatically. At the same time, they make clear that $350,000 is not a “cap” and spousal support can, and often will, increase for income above that ceiling. The SSAGs provide the following example at s. 11.3:

If the payor earned more, say $500,000, a court could leave spousal support in that same range [the one for $350,000] or, in its discretion, a court might go higher, but no formula would push the court or the parties to do so and it would be an individualized decision. If the formula were to be applied for an income of $500,000, the support would rise to $15,625 to $20,833…monthly. Or the court or the parties might settle upon an amount somewhere in between these two ranges. These are large numbers for support in this case, but keep in mind that this is the very top end of the formula, with a long marriage, a high payor income and no income for the recipient.

[118] I note that the SSAGs example uses an income of $500,000, half the amount attributed to the payor in this case, and still suggests that spousal support might be left in the same range as for an income of $350,000.

[...]

[120] As stated at s. 11.3 of the SSAGs, “What is clear is that the larger stakes at these income levels [above $350,000] and the complexities of the individual cases mean that the Advisory Guidelines will have less significance to the outcomes above the ceiling, whether negotiated or litigated.”

[...]

[122] Thus, while the trial judge was fully justified in making an award of spousal support that was both compensatory and non-compensatory, in setting the quantum, he needed to take into consideration the fact that the equalization payment went some considerable distance towards satisfying both bases for the award. As he did not, in my view, the use of the full $1,000,000 as an income input – in other words, the choice of an income input at the highest point within the suggested income range – was an error in principle. I will say more about this below, when determining an appropriate spousal support order.

[...]

[148] I would account for the effects of the equalization payment on entitlement, as well as the necessary attribution of investment income to the respondent, by applying the SSAGs formula instead to an income of $675,000. This amount is half-way between the ceiling and the imputed income of $1,000,000: an approach suggested as a reasonable mid-point by the SSAGs, in discussing incomes over $350,000.

[149] In my view, attributing income of $675,000 a figure at the mid-point between the $350,000 ceiling and the full imputed income amount and maintaining the low-point of the range generated by this income (as the trial judge did), fairly achieves the desired effect of providing both compensatory and non-compensatory aspects of support.

[150] The SSAGs range for support outputs is based on 1.5-2% of the difference between the spouses’ gross income for each year to a maximum range of 37.5-50% for marriages of 25 years or longer. I would apply the low end of this range, namely 37.5%, to the gross income difference from January 2016 forward, when the trial judge imputed $35,000 of employment income to the respondent. This results in 37.5% x $640,000 = $240,000 annually or $20,000/month. As I have explained above, the respondent will have additional interest income from the date of the Order forward. However, for the reasons already given, I consider these additional income sources to have been accounted for in the application of the SSAGs to a reduced income of $675,000, rather than the full $1,000,000 of income imputed to the appellant.

[151] From the date of the Application until January 2016, the trial judge did not impute any employment income to the respondent. Applying 37.5% to a gross income difference of $675,000 results in a figure of $253,125 per year or $21,094/month of spousal support. As the foregoing explains, all of the figures used are approximations, for this reason, I would round the figure to $21,000/month.

In Dancy v. Mason, 2019 ONCA 410 (CanLII), the ONCA, citing Halliwell, noted that in cases where a payor earns more than $350,000, in addition to the low, mid-point and high-end amounts suggested by the SSAGs, there is also a range of possible appropriate payor income inputs. The court has discretion as to whether or not to include the payor's total income in determining the amount of spousal support that should be paid:

[18] We note that the amount ordered is not actually accurately described as “just below the low end of the [SSAG] range”. This is because the SSAGs suggest that for payor income over the $350,000 ceiling, there is also a range of appropriate income input from $350,000 to the payor’s actual income amount: see SSAGs at s.11.1-11.3 and this court’s decision in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671. This means that for payor incomes above $350,000, in addition to the low, mid-point and high-end amounts suggested by the SSAGs, there is also a “range” of possible appropriate payor income inputs. In this case, for example, the motion judge could equally appropriately have selected a payor income of $491,000, namely the half-way point between $350,000 and his total income of $632,827. This would have generated a monthly support range from $9,531 to $12,708, placing the actual amount awarded at the “high-end” of that range. This does not, however, change our assessment of the motion judge’s award as being well within his discretion.

A number of cases involving spouses with an annual income greater than $350,000 have applied the individual analysis approach from Halliwell in determining the amount of spousal support that is owed from the higher-earning spouse to the lower-earning spouse. In some of these cases, the SSAGs were applied to the payor's actual income in order to set the level of support, while in other cases, the courts have imputed a different income to the payor and/or deviated from the SSAGs. Some of these cases are outlined below.

In Fox v. Fox, 2017 ONSC 6509 (CanLII), Mossip J. of the ONSC cited Halliwell and stated that the “individualized” approach to determining spousal support, when the payor’s income is above $350,000 annually drives the determination of where in the support range generated by the SSAGs, the order should be made. In this case, the Court held that no reason why the SSAGs should not be used to determine the amount of spousal support payable and that an “individualized approach” is necessary because the husband's income was over $350,000. The Court held that the mid-range of the SSAGs was the appropriate quantum of spousal support and took into account: the length of the marriage, the needs of the wife, the ability of the husband to pay support, the strength of the wife's compensatory claim favour an award in the high end of the range, and the work incentive for the payor, taking into account his age and health:

[82] A recent decision from the Ontario Court of Appeal, Halliwell v. Halliwell, 2017 ONCA 349, provides a helpful framework for the determination of the issues related to spousal support that I must decide. The case does not set out new law on this issue, but pulls from the statutes, the Spousal Support Advisory Guideline: The Revised User’s Guide, (April 2016) (“SSAG’s”), and the jurisprudence, to set out a cogent analysis for trial judges to follow when deciding the issue of spousal support.

[...]

[146] In paragraph 84 above, I set out the paragraphs from Halliwell that give direction as to how to deal with a payor’s income that is in excess of $350,000.

[147] Although this trial decision below pre-dates Halliwell, I found Warkentin J.’s, analysis in Cork v. Cork, 2014 ONSC 2488 on this issue helpful. At paras. 28-34 she wrote:

28 Counsel provided me with their calculations including a variety of income scenarios for both parties. Both counsel agreed that when a spouse's income is more than $350,000.00, even in long marriages such as this, the Court has more discretion in determining the quantum of spousal support.

29 The SSAG's are a useful indicator for determining spousal support regardless of the payor's income. However, when incomes surpass $350,000.00 the objective becomes less about striving to equalize the parties' incomes, even in a long term marriage. In these circumstances, the SSAG calculations are often considered as one part of the overall consideration of factors that determine spousal support.

30 Two factors that tend to increase the quantum of spousal support to the higher end of the range of the SSAG calculations are the length of the marriage and the resulting concept of merger of the parties' economic lives over the course of their marriage. In this case those factors include the fact that the Husband has always been employed in the same line of work, for the same company in its various formations for the entire marriage. The Husband continues in that same employment today. The parties structured their lives and lifestyle based upon the Husband's income.

31 Regardless of the Husband's claim that he did not want the Wife to give up her career, the fact is that the Wife has not worked for a salary since 1996, a period of 15 years prior to their separation. Even when she was working, her salary was modest compared with the Husband's.

32 A significant factor that pushes the quantum of spousal support to the lower end or below the SSAG range is often referred to as a work incentive for the person earning the income that is funding the support payment. In other words, it is not necessarily appropriate to ensure both parties' net disposable incomes are the same or similar when one spouse puts in a significantly greater effort in going to work each day and incurs expenses in order to do so - expenses that the non-working spouse does not incur.

33 Finally, there is the additional factor that the higher the quantum of support paid, the lower the incentive for the non-working spouse to seek employment as is alleged by the Husband. The Husband seeks to have income imputed to the Wife due to her failure to seek employment or to take steps to upgrade her skills.

34 In balancing these factors in a long-term marriage, when the payor's income is above $350,000.00, the recommendation under the SSAG's is that the payment of spousal support range between 37.5% and 50% of the gross income difference between the spouses.

[148] The “individualized” approach to determining spousal support, when the payor’s income is above $350,000. per drives the determination of where in the support range generated by the SSAG’s, the order should be made.

[149] Counsel for Dr. Fox submitted that the spousal support award should be based on Dr. Fox’s income of $350,000 per annum and an imputed income to Ms. Fox of $77,279. (full-time at same job) when the ranges for spousal support are determined. Counsel for Ms. Fox rejected both of those submissions and argued that the spousal support should be based on Dr. Fox’s actual income, and that no additional income should be imputed to Ms. Fox.

[150] In this case, once entitlement to support has been established, there is no reason why the SSAG’s should not be used to determine the amount of spousal support payable. An “individualized approach” is necessary because Dr. Fox’s income is over $350,000.

[...]

[163] In this case, I find that the mid-range (when the without child formula is used), is the appropriate quantum of spousal support taking into account the following factors:

• The length of the marriage, the needs of Ms. Fox, the ability of Dr. Fox to pay support, and the strength of Ms. Fox’s compensatory claim favour an award in the high end of the range;

• The work incentive for the payor, taking into account his age and health; favour an award in the low end of the range.

[...]

[165] I note that based on my support order, the net disposal income of the parties is approximately 60%/40% in favour of Dr. Fox.

In Lefebre v. Lefebre, 2020 ONSC 311 (CanLII), Fryer J. of the ONSC noted that the SSAGS are not a cap in cases where a payor's income is over the $350,000 income threshold, but rather allows the court to consider if the full application of the SSAGs is appropriate. The Court held that although the husband's income was over $350,000, the case did not warrant a consideration of support based other than on the SSAGs range. The Court noted that the wife was receiving an equalization payment, but it was not so large so as to warrant a consideration of support based other than on the SSAGs range. The Court ordered the husband to pay spousal support to the wife at the high end of the SSAGs range:

[267] The first step in the assessment of spousal support is to determine each party’s income and, as per Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671 at para. 90, the:

(a) starting point for determining income under the SSAGs is the definition of income under the Federal Child Support Guidelines (SSAGs, s. 3.3.2). Those guidelines and the CSGs are virtually identical: see Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641 (Ont. C.A.), at para. 53.John’s Income

[...]

[393] The Spousal Support Advisory Guidelines (“SSAG”) produce a range of support of between $6,795 in the low range to $9,060 at the high range based on my findings with respect to the current income of each party.

[394] Barbie seeks to equalize the parties’ net disposable income. In Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, the Court of Appeal endorsed the use of the SSAG and suggested that if an award is made outside of the range, the trial judge should set out his or her reasons for the deviation. In this case, I do not find it necessary or appropriate to deviate from the SSAG range.

[...]

[401] John’s income is over the $350,000 income threshold referred to in the SSAG; this is not a cap but rather allows the court to consider if the full application of the SSAG is appropriate. In this case I find that it is. Barbie is receiving an equalization payment, but it is not so large as to warrant a consideration of support based other than on the SSAG range.

[402] John shall continue to pay Barbie spousal support at the high end of the SSAG range and support shall be paid for a total duration of 8 years from the date of separation. The “front end loading” of John’s support obligation should provide Barbie with some extra financial security over the shorter term while giving both parties some form of finality in order to put an end to their acrimonious post-separation relationship.

[403] This structure of support addresses and balances both the economic disadvantages and the economic advantages to each party arising out of the marriage. This award of support is designed to address Barbie’s compensatory claim for spousal support and to address her needs-based claim for a reasonable period of time.

In Chibante v. Chibante, 2018 ONSC 5736 (CanLII), Hebner J. citing Halliwell stated that the SSAGs will have less significance to the outcomes above the ceiling, whether negotiated or litigated. However, the Court stated that in this case, there was no reason to depart from the application of the SSAGs. The Court noted that the couple was married for over 26 years, raised two children, and built and co-own a business. The Court stated that both ought to benefit from that business, both in the form of income taken from it and in the form of its capital. At the same time, care must be taken not to make the award too high such that business operations are hindered. The Court awarded support within the SSAGs range:

[32] Louis’ income exceeds $350,000 per annum. The SSAG provide that after the payor’s gross income reaches a ceiling of $350,000, the formulas can no longer be automatically applied. At section 11.3 of the SSAGs, it is stated: “What is clear is that the larger stakes at these income levels (above $350,000) and the complexities of the individual cases mean that the advisory guidelines will have less significance to the outcomes above the ceiling, whether negotiated or litigated”: see also Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671.

[33] In this case, I see no reason to depart from the application of the SSAG. Louis and Lynne were married for over 26 years. They raised two children. They built a business together. They are joint owners of that business. They should both share in the income of that business until its ownership is determined in the civil action. They both ought to benefit from that business, both in the form of income taken from it and in the form of its capital. At the same time, care must be taken not to make the award too high such that business operations are hindered.

[34] In my view, the appropriate amount of interim spousal support payable is $20,000 per month, based on my calculations as set out above and all of the circumstances. This amount is within the range of the SSAG calculations summarized above. I have reviewed Lynne’s financial statement and this amount should allow her to enjoy a lifestyle comparable to Louis’ and to the lifestyle they both enjoyed during marriage. At the same time, given the amounts the parties have been able to take from the business in the past four years, the amount ought to be maintainable. In my view, it strikes the appropriate balance on an interim basis.

In Berta v. Berta, 2017 ONCA 874 (CanLII), the ONCA allowed the appeal in part, but concluded that the trial judge did not err by purporting to apply the low end of the SSAGs when calculating the husband's support obligation. The ONCA noted that deference to the decision of trial courts in determining the quantum of support is required and this deference is augmented for payor incomes over $350,000 where the SSAGs suggests “pure discretion” as one of two possible approaches to determining the quantum of support:

[18] Both Joan and Ray called accountants as expert witnesses to provide evidence on determining income for support purposes. The trial judge preferred the evidence of Ray’s expert. He found that Joan’s expert had improperly acted as an advocate for her, acting as her “[g]eneral to lead her into battle”, rather than a neutral expert seeking information to assist the court. He said that, both before and during the trial, Joan and her expert engaged in a relentless quest to demonstrate that Ray had engaged in fraud or some other nefarious activity. Joan’s expert also failed to meet with Ray’s expert to narrow the issues.

[19] The trial judge found that Ray’s average annual income was $644,172, comprising employment income, CPP, OAS, other pensions, investment income, and actual capital gains.

[20] The trial judge found that Joan had “substantial assets”, including a pension, a RRIF account, the money received from her ACCE shares, proceeds from the sale of the matrimonial home, and other savings. However, she failed to maximize the income that she could earn from these assets. She did not meet with a financial advisor and kept the funds in a traditional bank account with a low interest rate (between 1.35 and 1.9 per cent). She acknowledged that she had done nothing to ensure that she received the best return on her assets. The trial judge was also critical of Joan’s behaviour in two important respects – non-disclosure of two sources of income and surreptitious removal of money from ACCE when she knew it was in financial distress. Taking account of all these factors, the trial judge fixed Joan’s annual income at $484,356, “which includes pension income and investment income”.

[21] In light of the parties’ incomes, the trial judge observed that the SSAGs indicated that spousal support could be $5,380 in the low range, $6,227 in the mid-range, and $7,174 in the high range. He concluded that because Joan was “not maximizing her resources after separation”, the fairest approach was to order support at the low end of the SSAGs – $5,380 per month.

[...]

[49] Absent an error in principle, a significant misapprehension of the evidence, or an award that is clearly wrong, the trial judge’s conclusion on spousal support awards should be affirmed: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 11-12, and Halliwell v. Halliwell, 2017 ONCA 349, at para. 88. This deference is augmented for payor incomes over $350,000 where the SSAGs themselves suggest “pure discretion” as one of two possible approaches: see Department of Justice Canada, Spousal Support Advisory Guidelines (July 2008), (Ottawa: Department of Justice, 2008) at p. 112 and Hathaway v. Hathaway, 2014 BCCA 310, at para. 46. This approach remains unchanged in the April 2016 Revised User’s Guide. I cannot say that the trial judge’s decision to make a spousal support order at the low end of the SSAGs calculation amounts to any of the errors set out in Hickey and Halliwell.

[...]

[51] For these reasons, I conclude that the trial judge did not err by purporting to apply the low end of the SSAGs when calculating Ray’s support obligation.

In other cases following Halliwell, the courts have imputed a different income to the payor spouse than their actual income and/or deviated from the SSAGs. Some examples are outlined below.

In Zapfe v. Zapfe, 2019 ONSC 4065 (CanLII), Kurz J. of the ONSC citing Halliwell stated that the starting point for the determination of spousal support is the SSAGs, but that other considerations applied in this case because of the fact that the husband's income was above the $350,000 SSAGs “ceiling”. The Court noted that the SSAGs ceiling is not a hard cap on support payments. Instead, it represents the income level at which the SSAGs tables are no longer presumptively applicable. When the SSAGs ceiling applies, the determination of spousal support involves a case by case consideration of facts, individual adjustment to the SSAGs calculations, and the increased application of judicial discretion. The Court awarded spousal below the low end of the SSAGs of the payor's agreed upon income of $2.9 million, but noted that the support order was just over the high end of the mid-way point between $350,000 and $2.9 million. The Court noted that the ordered support was equal to Martin’s present budget, exclusive of taxes and support payments:

[29] The starting point for the determination of spousal support is the SSAG (see Fisher v. Fisher, 2008 ONCA 11 at para. 101-103). The starting point for determining income under the SSAG is the definition of income under the Federal Child Support Guidelines (see SSAG, ch. 3.3.2 and Halliwell v Halliwell, 2017 ONCA 349 at para. 90). Here, as stated above, the income figure that the parties rely on has already been set at $2,090,000.

[30] That being said, other considerations apply because of the fact that Martin’s income is above the $350,000 SSAG “ceiling”. The SSAG contains both a “ceiling” and a “floor”. The ceiling defines the upper level and the floor, the lower boundaries of what the SSAG authors call “typical” cases. Those typical cases are ones where the SSAG formulas alone are intended to be used (see RUG, para.11).

[31] The SSAG ceiling is not a hard cap on support payments. Instead it represents the income level at which the SSAG tables are no longer presumptively applicable. When the SSAG ceiling applies, the determination of spousal support involves a case by case consideration of facts, individual adjustment to the SSAG calculations and the increased application of judicial discretion.

[32] The considerations that apply when a payor’s income exceeds the $350,000 ceiling are set out at chapter 11 of both the SSAG and the RUG. Professors Rogerson and Thompson write at ch. 11(b) of the RUG:

• The formulas for amount are no longer presumptive once the payor’s income exceeds the “ceiling”.

• The ceiling is not an absolute or hard “cap”, as spousal support can and usually does increase for payor incomes above $350,000.

The formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts.

• Above the ceiling, spousal support cases require an individualized, fact-specific analysis. It is not an error, however, to fix an amount in the SSAG range, as was done in J.E.H. v. P.L.H., above. Evidence and argument are required.

• Where the payor’s income is not too far above the ceiling, the formula ranges will often be used to determine the amount of spousal support, with outcomes falling in the low-to mid range for amount. How far is “not too far above” is still not clear. Somewhere between $500,000 and $700,000, it seems.

• Once the payor’s income is “far” above the ceiling, then the amount of support ordered will usually be below the low end of the SSAG range, but SSAG ranges are still calculated and sometimes the outcome will fall within the SSAG range.

In light of these principles, it is critical that counsel do SSAG calculations even in high income cases. It is wise to calculate the ranges for alternative income levels: for the $350,000 ceiling (as a minimum) and for the full income (as a maximum), as well as for a range of intermediate incomes (to assist the court in triangulating an outcome). For a good example of such alternative calculations, see Saunders v. Saunders, 2014 ONSC 2 459.

[Emphasis in original.]

[33] The RUG also considers the application of the SSAG to interim support awards, stating, again at ch. 11(b):

A number of the reported high income decisions involve interim or temporary support awards. Interim outcomes are more likely to fall within the formula range, as the goal in the interim period is to maintain the financial status quo: Cork v. Cork, 2013 ONSC 2788. In some of these cases, the estimate of the payor’s income will be low, pushing the amount higher in the range to adjust: Saunders v. Saunders, above; Loesch v. Walji, 2008 BCCA 214.

[Emphasis in original.]

[34] In Halliwell, at para. 116, Gillese J.A., writing for the Ontario Court of Appeal stated that in dealing with cases where the payor’s income is above the $350,000 SSAG ceiling, an “additional formula is created”. It is one in which the appropriate range of income inputs for the SSAG calculation is anywhere from the ceiling figure to the actual income figure. Gillese J.A. points to two important factors in the determining the range of income to be used for support: entitlement, which I take to be the basis of entitlement (here non-compensatory) and the amount of the equalization payment.

[35] The court adds at para. 120, quoting from ch. 11 of the SSAG:

What is clear is that the larger stakes at these income levels [above $350,000] and the complexities of the individual cases mean that the Advisory Guidelines [i.e. the SSAG] will have less significance to the outcomes above the ceiling, whether negotiated or litigated.

[36] In Halliwell, the appeal court turned its attention to high property awards. Gillese J.A. stated that it is necessary to determine whether such awards met either or both of the compensatory and non-compensatory bases for support award. That determination is a key factor in the court’s exercise of discretion in cases where the payor’s income exceeds the SSAG ceiling (see paras. 120 -122).

[37] In the recent Ontario Court of Appeal case of Dancy v. Mason, the court confirms and expands upon the applicability of the process set out in Halliwell. That process allows the court to find, in appropriate circumstances, a figure between the $350,000 ceiling and the payor’s actual income as the basis for the SSAG calculations.

[38] As the court wrote at para 18:

… the SSAGs suggest that for payor income over the $350,000 ceiling, there is also a range of appropriate income input from $350,000 to the payor's actual income amount: see SSAGs at s.11.1-11.3 and this court's decision in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671. This means that for payor incomes above $350,000, in addition to the low, mid-point and high-end amounts suggested by the SSAGs, there is also a "range" of possible appropriate payor income inputs. In this case, for example, the motion judge could equally appropriately have selected a payor income of $491,000, namely the half-way point between $350,000 and his total income of $632,827. This would have generated a monthly support range from $9,531 to $12,708, placing the actual amount awarded at the "high-end" of that range. [Emphasis added.]

[39] Another approach available in high income cases is the one taken by Shore J. of this court in Climans v. Latner, 2019 ONSC 1311. That was a case of a weak compensatory claim following a 14-year common law relationship with no children. In considering all of the relevant factors, Shore J. decided to apply the full $6.5 million income of the payor husband and a $30,000 annual imputed income to a dependant spouse. Because of the other relevant factors, Shore J. chose to grant support based on just 11% of the net disposable income of the parties, a figure far below the low range of the SSAG.

[40] In doing so, Shore J. looked at the recipient’s budget, eliminated some figures that she felt to be excessive, and then grossed up the remainder for taxes.

[41] In that case, Mr. Latner’s income was about 3.5 times greater than that of Martin in this case.

[...]

Issue No 2: Where in the SSAG range should I fix Martin’s support obligations to Lorraine?

[48] Martin’s counsel, Mr. Nathans has, very helpfully, placed a number of SAAG calculations, based on a variety of potential income figures, in a chart found in his factum. This process should be followed more often. For example, the three monthly SSAG figures based on an income of $2,090,000, the figure agreed upon by the parties as Martin’s income for the purposes of this motion, are:

High: $51,500 Mid: $45,062 Low: $38,625

[49] SSAG monthly calculations based on an income of $1,220,000 are

High: $29,750 Mid: $26,031 Low: $22,312

[50] Lorraine argues that the proper figure is $53,000 per month, which is higher than the high range for $2,090,000. Even then, Lorraine would have only about 1/3 of the parties’ net disposable income. Lorraine arrives at this figure by looking at her budget of $24,590.10 per month and grossing it up for taxes. However I have to note that, even without a specific calculation, the pre-tax amount payable would likely be less than $50,000. That assumes that I find that all of her expenses are reasonable in the context of a wealthy, financially dependent spouse who was married to and/or living with a wealthy spouse. She states that the parties lived a lavish lifestyle. She wishes to continue that lifestyle and argues that Martin is capable of and obliged to support it.

[51] Martin denies that claim about their pre-separation lifestyle, but offers little evidence of a more modest lifestyle. At the same time, Lorraine offers no evidence of the amount of money that was spent by either her or the couple prior to separation. That information would have been helpful.

[...]

[57] I am also required to consider that Lorraine has already received a substantial advance against equalization of $1,352,452. In addition, the parties agree that she will receive at least a further $2.35 million or so in a further equalization payment (which will be over $3 million if Lorraine is successful). That payment is secured by the non-dissipation order that I made at the beginning of this motion. There is no reason that this matter cannot be resolved by settlement or trial within the next few months.

[58] In considering all of these factors, including the length of the relationship, the non-compensatory nature of support entitlement, the equalization already paid and yet to be paid, as well as the relative budgets of the parties, I find that an interim spousal support quantum of $30,000 per month is reasonable and appropriate in the circumstances. I so order. In doing so, I recognize that any figure simply represents rough justice that may be adjusted up or down at trial, upon a fuller evidentiary record.

[59] The figure I have chosen represents a 50% increase in the support that Lorraine has been receiving on consent since April 1, 2018. It is just over the high end of the mid-way point between $350,000 and $2,090,000 ($29,750). While it is below the low end of the range for the full income of $2,090,000 ($38,625) it is more than 75% of that figure. It also represents a figure that is, on an after tax basis, at least equal to Martin’s present budget, exclusive of taxes and support payments.

In B.S. v. B.W., 2019 ONSC 2769 (CanLII), Swartz J. of the ONSC cited Haliwell and attributed income of approximately $600,000 to the husband for support purposes. The Court noted that this figure was at the mid-point between the $350,000.00 ceiling and the husband's full imputed income of approximately $865,000. The Court held that maintaining a low-point of range generated by this income fairly achieved the desired effect of providing for both compensatory and non-compensatory aspects of support:

[43] When one then accounts for employment income of $53,161.00, investment income of $8,395.00 along with employment income from the United States of $299,425.00, this results in a total income found available for payment of spousal support of $865,856.00. It is significant to note that this calculation does not include for support purposes any amount of the pension payout that was directed into a locked-in retirement plan by Mr. S. in 2017.

[...]

[51] The Court further states on the topic of incomes in excess of $350,000.00 at paras. 105 and 106:

As already mentioned, the Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support. In my view, the motion judge erred in departing from the Guidelines for the reasons he did: namely, the good luck associated with the husband’s early pension pay-out opportunity (at para. 140) and his finding that the wife was “mismanaging her affairs” (at para.150).

In the face of a very strong compensatory basis for entitlement to support, as well as an income increase arising from the very same job that the husband occupied throughout the 23-year-long traditional marriage, there was simply no reason to conclude that “the underlying assumptions of the SSAGs [were now] less helpful” (para.151).

[52] Professors Thompson and Rogerson state in The Spousal Support Advisory Guidelines: The Revised User Guides (2016) (“the RUG”):

Where the payor’s income is not too far above the ceiling, the formula ranges will often be used to determine the amount of spousal support, with outcomes falling in the low-to mid range for amount. How far is “not too far above” is still not clear. Somewhere between $500,000 and $700,000, it seems.

[53] Counsel raised the issue of how much is too much and references the assertion in the RUG that one does not want to go too far and how far is not too far within the ranges suggested between $500,000 and $700,000.

[54] The Ontario Court of Appeal in the case of Halliwell v. Halliwell, 2017 ONCA 349, which was decided shortly after the Slongo decision notes as follows:

In my view, attributing income of $675,000 a figure at the mid-point between the $350,000 ceiling and the full imputed income amount and maintaining the low-point of the range generated by this income (as the trial judge did), fairly achieves the desired effect of providing both compensatory and non-compensatory aspects of support.

[55] In my view, attributing to Mr. S. an income of $607,928.00, a figure at the mid-point between the $350,000.00 ceiling and full imputed income amount of $865,856.00 and maintaining a low-point of range generated by this income fairly achieves the desired effect of providing for both compensatory and non-compensatory aspects of support. The contractual nature of the support claims is also reasonably addressed.

[56] I find this approach in the Halliwell case particularly appropriate to the circumstances of this file. It is a reasonable and fact specific approach that addresses the particular circumstances of this family and reflects both the compensatory, contractual and reduced need based elements of support.

In Plese v. Herjavec, 2018 ONSC 7749 (CanLII), Mesbur J., citing Haliwell, noted that the SSAGs do not automatically apply in circumstances where the payor spouse earns more than $350,000 per year. In this case, the Court awarded spousal support of $125,000/month. That amount was significantly lower than any of the SSAGs scenarios. The Court stated that this amount was a reasonable balancing of the economic consequences of the end of the marriage, coupled with reasonable compensation for the wife, over and above simply meeting her monthly needs. In coming to this conclusion, the Court also took into account the ongoing capital positions of each of the parties:

[333] Given my findings on both entitlement and income, I must consider the effect of the SSAGs. Using the SSAGs, the length of the marriage, each party’s income, age at separation and number and ages of children, the SSAGs suggest a range of monthly spousal support from a low of $153,144 to a midrange of $178,664 to a high of $187,050. The “high” figure would provide each of the parties with half of the total Net Disposable Income (NDI) available.

[334] The SSAGs do not automatically apply in circumstances where the payor spouse earns more than $350,000 per year. Courts have dealt with these high income earners in various ways. In some circumstances, the court will look at the SSAGs result in terms of the net disposable income (NDI) available to each of the parties under various scenarios. In the case of lengthy marriages, courts will often fashion a spousal support order that results in each party have roughly the same NDI.

[335] In other cases, the court will conduct the analysis on a “means and needs” basis; that is, what does the recipient spouse reasonably need to meet his or her reasonable expenses, having regard to the standard of living the parties enjoyed while they were living together.

[336] In my view, having regard to Ms. Plese’s accustomed standard of living, and her likely expenses once she buys a house and cottage, I estimate her net monthly expenses will be about $58,800. In coming to this conclusion I have deleted from her most recent financial statement her stated expenses for maintaining High Point and Fisher Island, and have replaced those expenses (somewhat arbitrarily) with about half of those historical costs to cover off what she is likely to spend to maintain a new home and cottage. I have eliminated her rental costs, since she will no longer incur them once she buys a home.

[337] I have also deleted from her expenses some of the expenses for Skye, who is no longer dependant, and for Brandon, who is well over the age of majority. Last, I have deleted her ongoing legal and experts’ fees, since those have presumably ended with the end of this trial. Even on this basis, Ms. Plese needs at least $58,800 per month, net of tax, to maintain anything close to her former standard of living. A gross income of about $679,000 comes nowhere near meeting those needs since that income would yield Ms. Plese about $29,000 per month after tax, according to SUPPORTmate calculations, using only this income as an input. On a needs basis alone, Ms. Plese has a significant entitlement to spousal support.

[338] Other cases focus on a compensatory model, and approach quantum in that fashion.

[339] Mr. Herjavec points to the fact that the SSAGs do not automatically apply to payors whose income is more than $350,000. He urges me to apply what he calls the Halliwell principle[27] in determining the appropriate amount of support in this case.

[340] In Halliwell, the Court of Appeal approached spousal support with a high income earner in the following fashion.

[341] First, the court pointed out that the approach must be “an individualized fact-specific analysis” which in turn requires a consideration of the effect of the equalization payment. I have already dealt with the effect of the equalization payment in discussing both Ms. Plese’s means and her reasonable needs, having regard to all the circumstances of this case.

[342] Next, the Halliwell court considered the payor’s income in the context of its being more than $350,000 a year. At paragraph 117 the court said: “The SSAGs provide at s.11.1 that after the payor's gross income reaches the ceiling of $350,000, the formulas can no longer be applied automatically. At the same time, they make clear that $350,000 is not a ‘cap’ and spousal support can, and often will, increase for income above that ceiling.”

[343] Ultimately, considering all of these approaches, in the overarching context of the provisions of the Divorce Act, will be the way I exercise my discretion in awarding spousal support.

[344] As I see it, a spousal support award of $125,000 per month is appropriate in all the circumstances of this case. The amount is significantly lower than any of the SSAGs scenarios. It will give Ms. Plese about 39% of NDI, including child support. Since child support will end soon, I look at Ms. Plese’s situation without child support as well. In the months she does not receive child support, she will have monthly net income of just about $87,000 while Mr. Herjavec will have roughly $173,000 per month after tax. As I see it, this is a reasonable balancing of the economic consequences of the end of the marriage, coupled with reasonable compensation for Ms. Plese, over and above simply meeting her monthly needs.

[345] In coming to this conclusion I have also considered the ongoing capital positions of each of the parties. Mr. Herjavec retains THG, which I assume is still worth $32 million. He has a home in California, and after paying the equalization payment will still have about $1.2 million remaining from his share of the ultimate sale proceeds of Fisher Island. He will therefore have remaining assets (without considering his home) of over $33 million compared with the $13.25 million Ms. Plese will have.

Authorities:
Halliwell v. Halliwell, 2017 ONCA 349 (CanLII)
Dancy v. Mason, 2019 ONCA 410 (CanLII)
Fox v. Fox, 2017 ONSC 6509 (CanLII)
Lefebre v. Lefebre, 2020 ONSC 311 (CanLII)
Chibante v. Chibante, 2018 ONSC 5736 (CanLII)
Berta v. Berta, 2017 ONCA 874 (CanLII)
Zapfe v. Zapfe, 2019 ONSC 4065 (CanLII)
B.S. v. B.W., 2019 ONSC 2769 (CanLII)
Plese v. Herjavec, 2018 ONSC 7749 (CanLII)