Couples going through high asset divorces may find themselves encountering issues that are more difficult to navigate than other couples. For example, a couple may have wealth, but that wealth may not be liquid. A spouse may not be able to simply go into the chequing account and write a cheque. In a recent case heard by the Ontario Superior Court, the court was asked to determine how much spousal support a husband should have to pay a wife when he made over $2 million per year.

The couple’s background

The husband in the case was a wealthy businessman. He and the wife started living together in December 2001 before marrying in 2006. They separated in May 2017.  During their time together, the wife did not work outside of the home. The husband, meanwhile, made over $2 million per year towards the end of their marriage. The trial arose when the wife asked the court to set interim spousal support while they waited to finalize their divorce. It should be noted that the husband provided a total of $1.7 million to the wife following their separation, with most of that coming from the sale of the matrimonial home.

Factors used to determine interim support

The court started its analysis by noting that the Divorce Act empowers it to order periodic or lump sum support payments as well as interim spousal support orders. The Act further states the factors the court shoud take into consideration in such situations, noting

  • the length of time the spouses cohabited;
  • the functions performed by each spouse during cohabitation; and
  • any order, agreement or arrangement relating to support of either spouse.

In situations where interim spousal support is being considered, the court should seek to satisfy the following objectives,

  • recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  • apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  • relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  • in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

As we mentioned earlier, people who earn over $350,000 per year bring additional considerations, which are addressed in the Spousal Support Advisory Guidelines. They include,

  • 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.
  • 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.
  • 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.

Applying the law to the case at hand

The court found that the considerations for high-income earners applied to the parties in this case. The court looked at the length of their relationship as well as the equalization payment already made by the husband. The court ultimately determined that the husband should be required to pay the wife spousal support equal to $30,000 per month.

To speak with an experienced Windsor lawyer about high-asset divorce issues, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.