28 April 2017
Payor income above the $350,000 ceilingThis week I am copying directly from the Department of Justice website because I really like their concise summary of this issue. What follows is a discussion about calculation of spousal support in high income cases. The nugget at the end is this: the courts decide cases on the unique facts of each case, but the general trend is towards reliance on the range of payments provided for in the Spousal Support Advisory Guidelines. SSAG
Karen F. Redmond, Family Law Lawyer
This is from the DOJ cite below:
Department of Justice
"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  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.
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  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,  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,  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.
As always, get legal advice if you need it.
11 April 2017
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California's Bay Area has a practice group devoted to Integrative Mediation and the Marin County Bar Association website explains how a process based on the Integrative Mediation model is used by their court in an Interdisciplinary Settlement Conference (ISC).
Marin Superior Court has implemented an innovative and effective program called the Interdisciplinary Settlement Program, designed to better meet the needs of families in high conflict custody matters. Once a party has filed a request for a child custody order and at the request of either party the court may set an Interdisciplinary Settlement Conference (ISC). This is a judicially supervised proceeding in which a volunteer mental health professional and a volunteer family law attorney work together with a judicial officer to help parents resolve custody disputes. The goal is to reach agreement by defusing hostility, initiating better communication and cooperation, and offering research-based information about the developmental needs of children. Self represented litigants should contact the Family Court Facilitator to obtain information and forms to file requests for order and an ISC."
02 April 2017
Karen F. Redmond
Collaborative Family Law Lawyer
14 March 2017
Spousal Support – Is there a clear answer on How to divide Net Disposable income? Should 50/50 NDI be the norm?
I will confess at the outset, this blog is a little long and this is because I was struggling with the question about why, following separation, the net incomes of the parties are not just equally divided. What follows is a discussion, and my largely failed attempt to answer my own question.
First, a little background information. What is spousal support anyway and why do people have to pay it?
Why do parties have to pay spousal support? What does it mean to compensate a spouse?
The point to be made here and it may be hard to accept if you are the recipient, is that the equalization of the economic consequences of the marriage or its breakdown does not necessarily mean equalization of net disposable income. The equalization of net disposable income is not the legal test for compensatory spousal support. Another case you may want to read: Armstrong v Armstrong 2012 BCSC 166 2012.
“Despite the intellectual attraction of a 50/50 split, there are a number of practical problems that convinced us that it was not appropriate to set the upper limit of the range there. First, very few courts are currently prepared to push spousal support amounts that high. Second, there is a live concern for the access-related expenses of the payor spouse, expenses that are not otherwise reflected in the formula. Most payors are exercising access and most are spending directly upon their children during the time they spend with their children. Third, there are concerns for the payor in the situation where the payor has employment-related expenses and the recipient spouse is at home full time and receiving large spousal support.”
So, what if there are children and we share parenting time?
What are the Courts saying about this?
Whereas Ontario Courts tend towards an equal sharing of NDI in shared parenting situations, the Courts in British Columbia have continued to default to generating awards in the mid-range of the SSAG. Although there is no support or justification within the SSAG to default to the mid range, in R.D.L.J. v. B.S.J., 2014 BCSC 1566, the court suggested that an equal NDI outcome, while not out of the question, would be “a significant change in the practice and the law in British Columbia”.
In this writers opinion, this trend needs to be changed.
So, to answer my original question:
Is there a clear answer on How to divide Net Disposable income? Yes, and no. The Guidelines provide the range within which the answer lies.
Should be 50/50 NDI be the norm? Well, this depends on whether you are the recipient or the payor, but the answer from the courts and from the drafters of the SSAG appears to be that 50/50 NDI is not the norm.
19 February 2017
Has anyone other than JP Boyd read the entire Spousal Support Advisory Guidelines (SSAG) Revised Users Guide (“RUG”)? SSAG RUG I have to confess that I did not read the entire original 2008 SSAG Users Guide, nor did I make it through the 2010 updated version. But, I have read the entire 2016 update and I learned a few things, ok I learned a lot, which I hope to share with you here in this next series of Blogs about the SSAG. This my attempt to share some of these nuggets and to touch on some of the common mistakes and misconceptions about spousal support calculations.
(I didn’t know, for example that it was the makers of the DivorceMate software who in 2011 provided their online calculators free for use by the general public who previously could only access spousal support calculators by hiring a lawyer or other professional. online calculator . Shout out to DivorceMate.) But, I digress…..
It appears that one of the most frequent mistakes is an automatic deference by lawyers and the courts to the ‘mid-range’ of the guidelines without much consideration for the factors which support the low and high range of the calculations. The writers of the RUG are clear that “the mid-point is NOT some kind of “norm”, with the rest of the range only to be used in unusual circumstances” The tendency to default to the mid range should be avoided. They go on to say,
"If anything, in the basic formula cases for low to middle-income spouses, there should be a tendency for spousal support to push up into the mid-to-high end of the SSAG range, given the significant compensatory claims with children, the needs in the home of the primary care parent and the constraints of ability to pay upon the range. A simple default to the mid-point likely leaves many of these recipients under-compensated. There may be good reasons to locate in the mid-to-lower end of the SSAG in some of these cases, notably the specifics of ability to pay for lower income payors in individual cases, but these need to be articulated. The dynamics of location with the range will be different where there is only one child or spouses with higher incomes."
From a review of the case law, the following factors may favour a support award at the higher end of the range:
The recipient has a strong compensatory claim (eg. recipient moved/gave up employment for payor’s benefit; recipient funded payor’s education/training; recipient sacrificed employment opportunities because of child care).
The recipient has limited income.
The recipient has limited earning capacity.
The recipient has compelling needs and standard of living.
The recipient is older.
The recipient will be undertaking retraining or education in the immediate future which is aimed at promoting self-sufficiency.
The recipient has primary care of very young children, several children and/or special needs children (ie. age, number and needs of the children can restrict the custodial parent’s ability to work).
The marriage is long term.
The marriage is short with young children and a stay-at-home custodial parent.
There is no property to be divided.
The recipient is carrying significant family debts (but not severe enough to fall within debt payment exception).
The following factors may support an award at the lower end of the range:
The recipient has a weak compensatory claim.
The payor has limited income.
The payor has limited earning capacity/ability to pay.
The recipient does not have significant needs (eg. recipient has solid employment/income; recipient has reduced living expenses (ie. subsidized housing; mortgage free matrimonial home; shared housing costs)).
The recipient has remarried/repartnered.
The payor has significant needs.
The recipient is younger.
There is an unequal division of property in favour of the recipient.
The recipient holds sizeable exempt or excluded assets after division of property.
The payor is carrying significant family debts (but not severe enough to fall within debt payment exception).
In the case of a traditional marriage, the payor has costs associated with going to work, in contrast to the non-working recipient.
An incentive for the recipient to make greater efforts towards self-sufficiency is needed (although imputing income can also address this factor).
There are local and regional differences (eg. Atlantic provinces).
The payor has significant direct access costs (especially important when the payor is at the lower end of the income spectrum).
The payor makes mandatory deductions for pension contributions (especially important when the payor is at the lower end of the income spectrum).