High Income Spousal Support

In matters where the incomes of the parties is lower than $350,000, the Spousal Support Advisory Guidelines (“SSAG”) are a helpful tool to set spousal/partner support.

With that said, Spousal Support Advisory Guidelines (SSAG) calculations are less helpful once incomes are above $350,000 as the SSAG have a “ceiling” once the income in question breaches $350,000.

There are not many cases in Alberta that offer guidance on the principles to be applied once incomes reach that threshold, however, there is an often cited British Columbia Court of Appeal decision called Hathaway v Hathaway, 2014 BCCA 310 which offers some guidance on the topic, namely:

• Section 11 of the SSAG describes a “ceiling” and a “floor”, which is an attempt to define the upper and lower bounds of a typical case. In section 11.1 the ceiling for a payor’s income is set at $350,000 gross annual income. This is not an absolute ceiling or cap, rather, it is an income level above which the court can choose to apply the formulas or use a discretionary approach;
• The formula amounts are no longer presumptive once the payor’s income exceeds the “ceiling”;
• The formulas are not to be applied automatically above the ceiling, the formula must be looked in light of the underlying facts of the case, particularly the means, needs and circumstances of the parties. Above the ceiling, spousal support cases require an individualized fact specific inquiry; and
• Section 12 of the SSAG provides example of situations in which the court may wish to depart from the formulas set out in the SSAG.

The Court has discretion when applying the SSAG

The Court has discretion when applying the SSAG and courts in Alberta have reminded litigants of this over the years that the SSAG are not binding but are a helpful tool and should be considered (see: De Winter v De Winter, 2013 ABCA 311; Lust v Lust, 2007 ABCA 202).

In high income cases, the “ceiling” should not be confused with a “cap”. The overall assessment of what support is reasonable in the circumstances will take on an analysis of both the parties individual circumstances juxtaposed against the factors and objectives of spousal support enumerated in the Divorce Act.

Child Support and Divorce Law is a complex matter that needs to be done right. Should you have further questions or need to speak with a lawyer, please contact the author or the firm.