Spousal Support Advisory Guidelines: The Revised User's Guide
11 Ceilings and Floors (SSAG Chapter 11)
The “ceiling” and the “floor” define the upper and lower boundaries of the “typical” cases where the formulas can be used. Above the ceiling and below the floor, the formulas alone cannot be used, as individual adjustments are required, much like for the “exceptions”. Not surprisingly, there is much more case law and discussion for incomes above $350,000, so we will address cases below the floor first, and then the many cases above the ceiling.
(a) The floor: payor incomes below $20,000/$30,000
Chapter 11 of the SSAG explains the “floor” of $20,000, i.e. the annual gross payor income below which spousal support is not generally payable. There may be exceptional cases below $20,000 where support is sometimes payable. Just above that floor, for payor incomes between $20,000 and $30,000, ability to pay and work incentive concerns may justify going below the formula ranges, in what amounts to an “exception”. Most of these cases involve long marriages, older and retired spouses, and often disability issues for both spouses. They are few in number.
- Generally, support is not ordered below the floor: Heywood v. Heywood, 2013 ONSC 58 (36-year marriage, separated 2009, husband paying $1,200/mo based on income of $39,000, but his employment terminated, now retired, income $17,600, below SSAG floor, no ability to pay, despite wife no income, lengthy discussion of the floor); Whittick v. Whittick, 2014 BCSC 1597 (26-year marriage, husband $17,366, now retired, wife $14,201/yr, no support); Arbou v. Robichaud, 2012 NBQB 16 (retired, incomes of CPP/OAS now equalised, both below floor, support terminated); A.M.R. v. B.E.R., 2005 PESCTD 62 (11 years together, wife $18,557, disabled husband even less at $13,525, no support).
- In some of the early cases, courts did not make reference to the SSAG floor, but still denied support: Moores v. Moores, 2009 NLUFC 39 (both spouses disabled, payor husband receives $14,700, no ability to pay); Scheiris v. Scheiris, [2009] O.J. No. 3795 (S.C.J.)(payor’s pension income $10,000, wife’s $3,600, no support); Bains v. Bains, 2008 ABQB 271 (taxi driver earning $17,918/yr, child support paid, no spousal).
- In some cases of very long marriages, under the without child support formula, courts will find an exception below the floor, especially where the recipient has no income: Pratt v. Pratt, 2008 NBQB 94 (wife on social assistance, husband $14,116/yr, support only $300/mo); M.(W.M.) v. M.(H.S.), 2007 BCSC 1629 (wife’s income zero, husband $17,800/yr, support of $600/mo, low SSAG).
- On some unusual facts, courts have been prepared to order spousal support despite the floor: Wells v. Campbell, 2015 BCSC 3 (22 years married, husband $13,265, but $27,629 including VA pension, wife $11,079, lump sum of $10,972 payable upon sale of property, equivalent to $70/mo mid-SSAG); N.B. (A.G.) v. Flanagan, 2012 NBQB 849 (married 28 years, retroactive support, husband lost job as teacher for misconduct, failed to pay pension share to wife).
- In cases where the payor makes between $20,000 and $30,000, courts have generally awarded support amounts below the low end of the formula range, after explicitly considering this “exception”: Matthews v. Gallant, 2015 PESC 12 (husband $22,867, wife $16,497, husband paying family debts $315/mo, husband little tax deductibility for support, no support); Norrish v. Norrish, 2015 ABQB 370 (husband $23,357, wife in long-term care, $10,452, low-end SSAG); Slano v. Slano, 2014 BCSC 1677 (married 39 years, husband $31,157/yr, fluctuating income, wife $8,760/yr, low end SSAG of $700/mo ordered); Gustafson v. Gustafson, 2010 MBQB 10; Kajorinne v. Kajorinne, [2008] O.J. No. 2789, 2008 CarswellOnt 4229 (S.C.J.); Serpa v. Yueping, 2007 BCSC 1181 (no entitlement); Maitland v. Maitland, [2005] O.J. No. 2252 (Ont.S.C.J.); Snowden v. Snowden, 2006 BCSC 825.
- In two with child support cases involving low incomes, payors were ordered to pay small amounts of spousal support despite a zero formula range: H.P. v. D.P., [2006] N.S.J. No. 511, 2006 CarswellNS 560 (Fam.Ct.) ($175/mo spousal support until house sold rather than s. 7 contributions); Skirten v. Lengyel, [2007] O.J. No. 679 (Ont.S.C.J.) (husband should “pay something”, $50/mo). But these are “freak cases”.
One last note: in retirement cases, where a pension has been divided and that divided portion is deducted from the payor’s SSAG income, leaving the payor with a low income, this should not be treated as a “floor” case when his full income in reality exceeds that level, as the B.C. Court of Appeal noted in Brisson v. Brisson, 2012 BCCA 396. More complex issues are raised in these Boston cases, discussed below under “Retirement”.
(b) Payor income above the $350,000 ceiling
In absolute numbers, there aren’t that many of these cases, but they are over-represented in the decided cases, partly because of the high stakes involved and partly because they test the outer limits of our thinking about spousal support. A number of these cases have made their way to the B.C. Court of Appeal: see Carol Rogerson and Rollie Thompson, “Complex Issues Bring Us Back to Basics: The SSAG Year in Review in B.C.” (2009), 28 Canadian Family Law Quarterly 263 at 283-86. B.C. cases still dominate the reported decisions, as many of these high-income cases in Ontario are resolved by arbitration or mediation-arbitration.
There are some clear principles enunciated in the case law, even if the actual outcomes are discretionary and sometimes conflicting. In J.E.H. v. P.L.H., 2014 BCCA 310, leave to appeal to SCC refused [2014] S.C.C.A. No. 412, there is a careful review of the law for cases above the ceiling, where some of these principles are stated.
- 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 2459.
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.
- For incomes not too far above $350,000, courts frequently order an amount at the low end of the SSAG range for amount (payor’s income noted for each): Ponkin v. Werden, 2015 ONSC 7466 ($498,828, then $406,507); Stober v. Stober, 2015 BCSC 743 ($600,000); Piche v. Chiu, 2015 BCSC 335 ($465,000); Droit de la famille – 151740, 2015 QCCS 3284 ($375,000); Cork v. Cork, 2014 ONSC 2488 ($562,000, final); C.E.A. v. B.E.A., 2014 BCSC 1500 ($592,122); Dymon v. Bains, 2013 ONSC 915 ($550,000); D.L.D. v. R.C.C., 2013 BCSC 590 ($652,000); Perry v. Fujimoto, 2011 ONSC 3334 ($353,000); Trombetta v. Trombetta, 2011 ONSC 394 ($660,000); and Teja v. Dhanda, 2007 BCSC 1247, appeal partly allowed on other issues, 2009 BCCA 198 ($425,000).
- Not all of these cases end up at the low end: J.E.H. v. P.L.H., 2015 BCSC 1485 ($650,000, mid, variation); T.T. v. J.M.H., 2014 BCSC 451 ($597,000, mid-high); J.R. v. N.R.F., 2013 BCSC 516 ($471,814, mid-high); Abelson v. Mitra, 2008 BCSC 1197 ($355,000, mid-SSAG); and Y.J.E. v. Y.N.R., 2007 BCSC 509 ($602,400, mid-SSAG). In some jurisdictions, below-SSAG amounts are ordered even for these incomes, e.g. Babich v. Babich, 2015 SKQB 22 ($746,000, well below SSAG) and Milton v. Milton, 2008 NBCA 87 ($500,000, below SSAG).
- For incomes far above the ceiling, the majority of outcomes wind up below the SSAG ranges, sometimes well below at the highest income levels: Volcko v. Volcko, 2015 NSCA 11, leave to SCC refused [2015] S.C.C.A. No. 141 ($1,248,756); J.L.A. v. M.J.G.G., 2014 BCSC 1391 ($831,648); S.R.M. v. N.G.T.M., 2014 BCSC 442 ($900,000); Frank v. Linn, 2014 SKCA 87 ($1,211,828); Margie v. Margie, [2013] O.J. No. 6193 (S.C.J.) (more than $1 million); Goriuk v. Turton, 2011 BCSC 652 ($9,740,000); T.N. v. J.C.N., 2013 BCSC 1870 ($1,163,648, custodial payor); Breed v. Breed, 2012 NSSC 83 ($1,186,585); Dobbin v. Dobbin, 2009 NLUFC 11 ($1.5 million); and Dyck v. Dyck, 2009 MBQB 112 ($3,045,205).
- Even in cases far above the ceiling, however, some courts have fixed amounts within the SSAG range for high incomes: Saunders v. Saunders, above ($1 million, high SSAG, income estimate low); J.E.H. v. P.L.H., above ($1 million, mid-SSAG); B.L.B. v. G.D.M., 2015 PESC 1 ($1,069,724, low SSAG); Blatherwick v. Blatherwick, 2015 ONSC 2606 ($1.4 million, high SSAG); T.N. v. J.C.N., 2015 BCSC 439 ($982,626); Williams v. Williams, 2015 BCSC 112 ($1.2 million, mid-SSAG): K.R.M. v. F.B.M., 2013 BCSC 286 ($895,898, high SSAG); Elgner v. Elgner, [2009] O.J. No. 5369 (S.C.J., leave to appeal denied, 2010 ONSC 1578 (Div.Ct.) ($2.9 million, low SSAG); Loesch v. Walji, 2008 BCCA 214 ($1.6 million, husband’s income higher in past, spousal support $50,000/mo, higher than high end SSAG of $35,000/mo); and S.O. v. C.S.O., 2008 BCSC 283 ($909,569, low SSAG).
- In some high-income with child support formula cases, courts have calculated the table amount of child support on the full payor’s income and then calculated the formula range for a gross payor income of $350,000 for spousal support purposes: J.W.J.McC. v. T.E.R., 2007 BCSC 252 and J.E.B. v. G.B., 2008 BCSC 528 (Master). Remember that if you do this hypothetical calculation for the spousal support range, it is critical that you use the child support amounts appropriate for an income of $350,000 too, and not the actual higher amount of child support (an error made in the otherwise careful analysis in Dickson v. Dickson, 2009 MBQB 274). See the discussion of two incomes under “Income” above.
Some commentators have expressed concern that there is too much defaulting to the formula range in high income cases, but no such pattern emerges from the mass of case law reviewed above. Individual high-income cases can attract considerable legal attention, but the wide discretion for these very high incomes will inevitably result in divergent and unpredictable outcomes. High income cases do not pose technical issues that can be solved by any set of guidelines, but raise fundamental theoretical questions about the rationale and purpose of spousal support.
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