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Are High Income Earners Governed by the Spousal Support Advisory Guidelines?

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Are High Income Earners Governed by the Spousal Support Advisory Guidelines?

Few of us are “burdened” with the problem of being in a super-high income-earning bracket. But for those married individuals who are, and who decide to separate and divorce, a narrow but important question arises as to whether the Spousal Support Advisory Guidelines (SSAG) apply in the way they do to people earning a more “regular” income.

As we have written in the past the SSAGs are a tool used by judges (and lawyers) to help determine the appropriate amount of spousal support that should be owned by one spouse to the other (and there are separate calculations depending on whether the couple have children).

However, as the word “Guideline” suggests, the SSAGs are not mandatory, but rather are intended to be a starting-point from which adjustments can be made, depending on the circumstances.

The Guidelines effectively provide a staggered range of spousal support, with the upper limit of support being calculated based on the paying spouse’s income of $350,000.

So what happens when the spouse earns more than that? Is the spousal support amount intended to be capped? (And this begs the question, which is perhaps better answered another day: Does a recipient spouse really need more spousal support than what would be calculated at the $350,000 level?)

Court have established1 that the SSAGs – which are not legislation, but merely guides – do not automatically apply in cases where the paying spouse’s annual income exceeds $350,000; in other words, court are not constrained to use the SSAGs, even as a starting-point, when the paying spouse’s income exceeds this level.

However, if a judge does decide to refer to the SSAGs in making a ruling on support, the SSAGs do not impose any sort of cap on the amount to be awarded in cases where the paying spouse’s income exceeds $350,000.2 Rather, in these kinds of cases, the SSAGs can still be used as merely a starting-point for establishing a range of spousal support payable, but the judge must still consider the parties’ individual circumstances.3

Perhaps it’s an arcane point, but for those who are high-income earners, it can be an important legal point. When it comes to paying support that old adage seems rings true “the rich aren’t like you and me”.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

 

1 In a case called Myers v. Vickar, 2012 ONSC 5004 (Ont. S.C.J.)  at para. 74.

2 Elgner v. Elgner, 2010 ONSC 1578 (Ont. Div. Ct.)  at para. 13.

3 Denofrio v. Denofrio (2009), 72 R.F.L. (6th) 52 (Ont. S.C.J.) at para. 48; Cameron v. Cameron, 2013 ONSC 1192.