Spousal support above the $350,000 ceiling

The Spousal Support Advisory Guidelines set a "ceiling" at a payor's gross income of $350,000 a year. Above it, the formulas are no longer applied automatically, but the ceiling is not a cap: support can, and often does, rise above the amount at $350,000, decided case by case on the evidence (SSAG, chapter 11). In practice, lawyers usually calculate the ranges at $350,000 and at the full income, and argue for a figure in light of the Divorce Act or Family Law Act factors.

How spousal support is decided above the ceiling, step by step

Spousal support has two separate questions: whether there is entitlement at all, and if so how much and for how long. Our child and spousal support page and our guide to who is entitled to spousal support cover the first. This page is about amount when the paying spouse earns more than $350,000.

Fix the payor's income properly. The guidelines start from the Federal Child Support Guidelines definition of income, including Schedule III and the imputation rules (SSAG, chapter 6.1). For business owners, retained corporate earnings can be included under s. 18, which our page on corporate income and support explains.
Pick the formula. With no dependent children, the without child support formula applies: 1.5 to 2 percent of the gross income difference for each year of cohabitation, up to 50 percent, with 37.5 to 50 percent for 25 years or more. With dependent children, the with child support formula divides net disposable income so the recipient has 40 to 46 percent. Our page on spousal support when there are children covers the second.
Calculate at the ceiling. Run the formula with a payor income of $350,000. The 2016 Revised User's Guide, published by Justice Canada, calls this range the "minimum".
Calculate at the full income. Run it again with the payor's actual income. The user's guide calls this the "maximum", and suggests ranges at intermediate incomes too, "to assist the court in triangulating an outcome".
Build the evidence. Above the ceiling, the user's guide says cases require "an individualized, fact-specific analysis" and that "evidence and argument are required". That means budgets, the standard of living during the marriage, the recipient's earning capacity, and the property settlement.
Apply the statute. Under the Divorce Act, the court considers each spouse's condition, means, needs and other circumstances, including how long they cohabited and the roles each played (s. 15.2(4)), and the order should meet the four objectives in s. 15.2(6). Under the Family Law Act, the factors in s. 33(9) include the accustomed standard of living while the parties lived together.

What the official guidelines say about incomes above $350,000

Point	What the guidelines or user's guide say	Source
Where the ceiling sits	Gross annual payor income of $350,000	SSAG (2008), 11.1
Is it a cap?	No. Support "can and often will increase" above it, case by case	SSAG 11.1 and 11.3
Are the formulas still used?	Not presumptive above the ceiling, but they may still be an appropriate method in an individual case	Revised User's Guide (2016), chapter 11(b)
Incomes "not too far" above	Formula ranges often used, with outcomes in the low-to-mid range; the guide says the line is unclear, "somewhere between $500,000 and $700,000, it seems"	Revised User's Guide, chapter 11(b)
Incomes "far" above	Amounts usually below the low end of the range, though ranges are still calculated	Revised User's Guide, chapter 11(b)
Interim support	Interim outcomes are more likely to fall within the formula range	Revised User's Guide, chapter 11(b)
With children, two approaches	"Minimum plus" (formula at $350,000 as a floor, discretion above) or pure discretion taking actual child support into account	SSAG 11.3

What changes the answer

How far above $350,000. The user's guide describes a gradient: close to the ceiling, the ranges are often used; far above it, amounts usually fall below the formula. The exact point is not settled.
Children. Child support keeps rising with income above $150,000 and has priority over spousal support (Divorce Act, s. 15.3(1)). The SSAG note that very large child support amounts can include a component that compensates the recipient for the indirect costs of child care, leaving less need for spousal support to do it (11.3). When the formula is run at $350,000, the child support figure must also be the one for $350,000, not the actual higher amount, as the user's guide cautions. Our page on child support over $150,000 covers the child support side.
The property settlement. A large equalization payment or investment income can affect need and means. The Family Law Act asks whether financial hardship has been relieved by property orders (s. 33(8)(d)). Our page on high-asset separations looks at the property side.
Length of the relationship. Under the without child support formula, duration is 0.5 to 1 year for each year of cohabitation, and indefinite where the marriage lasted 20 years or more, or under the "rule of 65" (SSAG summary). Our page on how long spousal support lasts explains it.
Lump sum or periodic. The Divorce Act allows lump sum or periodic support, or both (s. 15.2(1)), and high-income cases sometimes use a lump sum. Tax treatment differs, as our page on support and taxes explains.
Arbitration. The user's guide notes that many high-income cases in Ontario are resolved by arbitration or mediation-arbitration, which affects how much published guidance exists.
Conduct is not a factor under the Divorce Act. The court "shall not take into consideration any misconduct of a spouse in relation to the marriage" (s. 15.2(5)).

A worked example

For example, suppose Jordan earns $750,000 a year as a partner in a Toronto firm and Casey earns $60,000. They cohabited for 18 years and have no dependent children. This is a hypothetical, and the figures below are simplified formula numbers before any tax analysis.

At the $350,000 ceiling: the gross income difference is $290,000. At 1.5 to 2 percent for each of 18 years (27 to 36 percent), the range is $78,300 to $104,400 a year, or about $6,525 to $8,700 a month.
At the full $750,000: the difference is $690,000, and the same percentages give $186,300 to $248,400 a year, or about $15,525 to $20,700 a month.
Duration: 18 years of cohabitation gives a durational range of 9 to 18 years under the formula, unless the rule of 65 applies.

Jordan's income is more than twice the ceiling, so the user's guide suggests outcomes often fall below the formula at that level, but it also lists cases at such incomes that landed within the range. Casey's evidence of the marriage's standard of living and of any career sacrifice would push toward the higher figures; Jordan's evidence of Casey's capacity and the property settlement would push the other way. The real number is argued, not computed.

Common mistakes in high-income spousal support

Treating $350,000 as a cap. The guidelines say it is not.
Running only one calculation. Ranges at the ceiling, at the full income and in between are what the user's guide recommends.
Using actual child support in the ceiling calculation. If you calculate the spousal range at $350,000, use child support for $350,000 too.
Thin evidence of lifestyle. Above the ceiling, budgets and proof of the marital standard of living carry real weight.
Understating income. Bonuses, dividends and retained corporate earnings all affect the starting income.
Ignoring the property side. Support and equalization interact, especially where the recipient receives income-producing assets.

What to do this week

Gather three years of tax returns and compensation records, including bonuses, equity awards and dividends.
Prepare a realistic budget showing how you lived during the marriage, with bank and credit card records behind it.
List any career steps you gave up or took on during the relationship, with dates.
Pull together the property picture, because it affects need and means.
Ask for formula calculations at $350,000 and at the actual income.
Book a free consultation to map out the evidence and the likely range before you negotiate.

Frequently asked questions

Do the guidelines apply at all above $350,000?

They are not presumptive above the ceiling, but they are still used as a reference, and a court may fix an amount within the formula range. The user's guide says it is "critical" to do the calculations even in high-income cases.

Is the ceiling based on both spouses' incomes?

No. The SSAG chose the payor's gross income as the basis for the ceiling (11.1).

Can interim support be higher than the final amount?

It can differ. The user's guide notes interim outcomes are more likely to fall within the formula range, as the goal is to maintain the financial status quo. Our page on interim support explains the process.

Are the guidelines law in Ontario?

No. Justice Canada says the guidelines are not law, though judges often base decisions on them and they are commonly used under provincial law as well as the Divorce Act.

What about the floor at the other end?

The SSAG floor is a payor gross income of $20,000; below it support is rare, and between $20,000 and $30,000 amounts may be reduced for ability to pay (11.2 and 11.4).

Does a high income mean support lasts longer?

Not by itself. Duration under the formulas depends on the length of the relationship and, with children, their ages, not on income.

How does spousal support work above the SSAG income ceiling?