Lorne N MacLean, QC regularly handles Vancouver high income spousal support cases and acts for both the paying and recipient spouses. Call 604-602-9000 if you have a critically important Vancouver high income spousal support disagreement with your spouse. We have 7 offices across BC, Calgary and Winnipeg so contact us now when the spousal support stakes are high.
Vancouver High Income Spousal Support Lawyers
Lorne N. MacLean, QC handles grey divorce and silver separation cases regularly. He headed the popular Grey Divorce seminar put on by the Pacific Business Law Institute and writes regularly on high net divorce issues with articles published in Lawyers Weekly and Business in Vancouver including one on wealthy super boomers and the issues they face upon divorce .
MacLean notes that Common Vancouver High Income Spousal Support Issues include:
- The 3 R’s of re-partnering, remarriage and retirement issues
- high net worth asset division and how it affects spousal support
- what is the right amount of support involving incomes over $350,000 and do budgets matter for the wealthy
- grey divorce where both parties now need to live separate and more expensive lives and should they use capital to live their golden years
- high net worth to ultra high net worth and international income cases and how support will be paid monthly or all up front
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Lorne MacLean QC, Vancouver High Income Spousal Support
MacLean Family Law understand high net worth individuals have multiple residences around the world and the jurisdiction of BC to decide spousal support can be disputed.
Our MacLean Family Law Vancouver High Income Spousal Support team has lawyers fluent in Mandarin, Farsi, Cantonese, Punjabi, Hindi and Russian as well as English and a dedicated Chinese language website.
Vancouver High Income Spousal Support cases involve high stakes. It pays to hire someone who handles these cases daily.
Click here to read an example of a win by Lorne N. MacLean, QC for his satisfied client.
Our tenacious Vancouver High Income Spousal Support know that a mistake is calculating income and setting the right amount and duration can mean swings of several thousands if not millions of dollars of monies paid or lost.
Recent Vancouver High Income Spousal Support Decision Where Husband Earned Over $3,000,000 Released September 2016
[418] The legal foundation for awarding spousal support is different from that of child support. However, the SSAG, which lack any legislative status, incorporate the methodology for defining income under the Guidelines, as a starting point.
[419] The task at hand is to set a fair income for future spousal support. It is logical and practical in this particular case that the determination of the parties’ income for spousal support purposes be the same as that income attributed to the parties in the preceding section on child support: Aelbers v. Aelbers, 2010 BCSC 1574 at para. 12. Therefore, for the purposes of assessing prospective spousal support, I find Mr. S.’s income to be $3,615,286 and Ms. D.’s to be $160,000 per annum.
[420] In formulating the appropriate quantum of spousal support, I have considered the parties’ lifestyle during the marriage. As I noted earlier, the context of this case is one of considerable wealth and involves a high standard of living. The parties generally enjoyed the lifestyle of an affluent family.
[421] Again, recognizing that the budgetary evidence is inherently imprecise, my task is to determine Ms. D.’s reasonable expenses, keeping in mind the circumstances of the parties.
[422] At trial, Ms. D. has claimed monthly expenses of $58,459, excluding income taxes and expenses for the children. In my view the monthly amount she has claimed in her budget is unreasonably high.
[423] First I note that Ms. D.’s Form 8 financial statement sworn on June 5, 2015, reflects a very modest debt load; a single credit card indebtedness of approximately $22,000. Ms. D. deposes that she anticipates making various capital expenditures in relation to the Kerrisdale home and that she would like to be able to purchase a new car.
[424] Ms. D. has included in her budget the property taxes and costs associated with maintaining the Kerrisdale property. She maintains that at the conclusion of these proceedings she would “organize the work necessary to locate and remediate the source of moisture and mould in the family home” and that she would then make a decision whether to sell or retain it. Ms. D. also included rent of $13,800 for a three-bedroom apartment; she maintains that she requires a three-bedroom rental until such time as the mould in the Kerrisdale home is remediated. In the circumstances, the $13,800 item should not be included in projecting her future expenses. Maintaining two residences at a high monthly cost is unreasonable.
[425] Even in the context of a wealthy lifestyle, I find certain elements of Ms. D.’s monthly budget excessive. By way of illustration, monthly expenses of $10,000 for travel and $3,000 per month for restaurant meals are excessive and are almost double those in Mr. S.’s projected expenses for the same items in his Form 8 financial statement sworn on May 25, 2015. As well, some of Ms. D.’s personal expenses, such as $2,000 per month for hair care and cosmetics, are excessive. Given that both her daughters are now adults and, as matters stand, S. will likely be at university for eight months of the year, I find housekeeper costs at $4,000 per month unreasonable.
[426] In Yemchuk v. Yemchuk, 2005 BCCA 406, the Court of Appeal accepted the SSAG, as a useful tool to assist judges in assessing quantum and duration in spousal support. In subsequent decisions, the Court has restated the utility of the SSAG in establishing the appropriate range of spousal support in order to ensure “a pattern of predictable awards”: Mann v. Mann, 2009 BCCA 181 at para. 72; see also Chutter; Redpath v. Redpath, 2006 BCCA 338; and Holland v. Novotony, 2009 BCSC 1754 at para. 172. However, the appellate authorities have also repeatedly cautioned that while the SSAG are a significant consideration, they are not to be slavishly applied, without regard to all the circumstances of a particular case.
[427] Section 11 of the SSAG describes a “ceiling” and a “floor”, which is an “attempt to define the upper and lower bounds of the typical case, for which guideline formulas can generate acceptable results.” The SSAG ceiling for a payor’s income is set in s. 11.1 at $350,000 gross annual income. Where the payor’s income is well above the ceiling of $350,000, the formulas for amounts are no longer presumptive and different considerations may apply. However, this is not an “absolute” ceiling or a cap: Smith v. Smith, 2008 BCCA 245 at para. 31; Hathaway at para. 45.
[428] In Hathaway, a recent decision of the Court of Appeal, the Court considered the two approaches outlined in the SSAG for circumstances where a payor earns more than $350,000 and is also paying child support. The “minimum plus” approach is suggested where a payor’s income is close to the “ceiling”. The second approach is described as “one of pure discretion”. The Court made the following observations on “the ceiling”:
[48] In The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version (2010), the authors comment that “[t]he 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” (emphasis in original). The authors state that “[a]bove the ceiling, spousal support cases require an individualized, fact-specific analysis” (emphasis in original). Lastly, the authors note that “[f]ar too often, in these high-income cases, lawyers and judges fail to consider the SSAG formula ranges at all, in arriving at their conclusions.” [Emphasis in original.]
[429] The Court in Hathaway affirmed that when a payor spouse’s income is above the “ceiling”, and as long as a court exercises its discretion on a principled basis, the determination of an appropriate amount of spousal support may be a matter of pure discretion. On the other hand, the Court of Appeal also confirmed that it may be appropriate to order spousal support in an amount that reflects the SSAG formula. The “litmus test” is whether the spousal support award complies with the objectives of s. 15.2 of the Divorce Act: at para. 50.
[430] In the final analysis, the ultimate determination of the appropriate amount of spousal support in high income cases is a matter of judicial discretion that is governed by the factors and objectives set out in s. 15.2(4) and (6) of the Divorce Act.
[431] Ms. D.’s counsel provided several SSAG calculations. By way of illustration and based upon a with-child formula, using an income range of $3,579,286 for Mr. S. and $55,980 for Ms. D. the range was $96,725 to $112,275, with a mid-point of $104,500.
[432] The SSAG calculations based upon a with-child formula using an income of $3,615,286 for Mr. S. and $160,000 for Ms. D. produces a range of $92,641 to $108,772, with a mid-point of $100,706.
[433] I note that the Guidelines amount of child support is factored into these SSAG calculations but not the s. 7 expenses that I have ordered payable by Mr. S. On the evidence I am unable to assess the quantum of those expenses with any precision.
[434] The authorities establish that with incomes over $350,000, the Court must engage in an individualized, fact-specific determination. Mr. S.’s income is more than 10 times the notional ceiling of $350,000. The SSAG formula amounts greatly exceed the amount required to fund Ms. D.’s reasonable needs as assessed within the context of this case. In my view, even the low range of spousal support would result in an unjust award. As part of my overall assessment, I have also taken into account the objectives and factors set out in the Divorce Act, the fact that Mr. S. is paying child support and S.’s post-secondary and medical expenses; Ms. D.’s strong compensatory claim; the needs and means of the parties, including the parties’ stated current expenses; the marital pre-separation and post-separation standard of living; as well as the ages of the parties and the disparity in their income-earning capacities.
[435] Balancing all of the relevant factors, I award spousal support to Ms. D. of $40,000 per month, commencing July 1, 2016. In my view, this award addresses both the compensatory and non-compensatory aspects of her claim and reflects the objectives of the Divorce Act.
In the end the Judge decided that in a 14 year relationship payments made voluntarily and under court order were to be time limited for 10 years.
