Halliwell v. Halliwell, 2017 ONCA 349 – Support for incomes over $350,000

Ira Cyril

January 20, 2022

The Spousal Support Advisory Guidelines (SSAG) were developed and implemented in an effort to provide predictability and consistency when determining spousal support pursuant to the Divorce Act.  However, when a support payor’s income is above the ceiling of “$350,000.00, the formula no longer applies, and the discretion of the Courts comes into play.  More specifically, an “individualized, fact-specific analysis,” is required.

This 2017 Court of Appeal case of Halliwell v. Halliwell, 2017 ONCA 349 found that when determining spousal support for a payor whose income was significantly over the ceiling, ‘an individualized, fact-specific analysis would require consideration of the equalization payment. Gillese J.A. noted that, “while the trial judge was fully justified in making an award of spousal support that was both compensatory and non-compensatory, in setting the quantum, he needed to take into consideration the fact that the equalization payment went some considerable distance towards satisfying both bases for the award.

In Haliwell, where the husband was ordered to pay more than $3,000,000.00 in equalization, the Court of Appeal found that that this payment addressed both the wife’s compensatory entitlement based on her role during marriage as the children’s primary caregiver and in caring for the household as well as her non-compensatory entitlement (or her needs and means) as her lifestyle following separation significantly decreased.

In determining the quantum of support to be paid, the Court of Appeal imputed an income of $35,000.00 to the wife, attributing it toinvestment income and post-judgment interest earned on the equalization payment. The appeal by the Husband was allowed in part and spousal support was varied, to a lower amount, accordingly.