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Family - Spousal Support (2). Carrubba-Gomes v. Gomes
In Carrubba-Gomes v. Gomes (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against a "temporary order ... to pay spousal support of $45,000 per month".
Here the court broadly considers the determination of interim spousal support using the Spousal Support Advisory Guidelines (SSAGs) in a high income context:[26] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) does not address how a court is to calculate spousal support, unlike child support where the quantum is governed by the Federal Child Support Guidelines, SOR/97-175 (the “CSGs”). The Divorce Act provides legislative guidance (i.e. “factors” and “objectives”) that a court must consider in making a spousal support award: Divorce Act, ss. 15.2(4) and (6); Reasons, at p. 4. However, the legislation provides no formulas for calculating the quantum of spousal support.
[27] As Victor notes in his submissions, the SSAGs were published in 2008, in conjunction with the Federal Department of Justice, with the goal of bringing more certainty and predictability to the determination of spousal support under the Divorce Act. To simplify and reduce the cost to litigants of determining spousal support, the SSAGs employ an income sharing model of support. The formulas in SSAGs yield a range of spousal support that takes into account various factors, including incomes, child support and special or extraordinary expenses under s. 7 of the CSGs (“s. 7 expenses”).
[28] Unlike the CSGs, the SSAGs “are neither legislated nor binding; they are only advisory”: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 95; see SSAGs, at p. xi. However, as set out in recent decisions on appeal from final spousal support orders, the Court of Appeal for Ontario has described the SSAGs as the “presumptive starting point” for determining spousal support.
[29] As stated in Rathee v. Rathee, 2024 ONCA 912, 8 R.F.L. (9th) 251, at paras. 32-33:In McKinnon v. McKinnon, 2018 ONCA 596, van Rensburg J.A. stated at para. 24:The SSAGs are the presumptive starting point for awarding support. Any departure from them requires adequate explanation: Slongo v. Slongo, 2017 ONCA 272 at paras. 105 and 106. In Slongo v. Slongo, 2017 ONCA 272, Simmons J.A. explained the rationale for this requirement, at para. 105: "without [the SSAGs], it is very difficult to establish a principled basis for arriving at a figure for spousal support." ....
[31] Victor also submits that using the SSAGs to determine spousal support on an interim basis is well established. As set out in the User Guide, at p. 15:The [SSAGs] are intended to apply to interim orders as well as final orders. The interim support setting is an ideal situation for the use of guidelines. There is a need for a quick, easily calculated amount, knowing that more precise adjustments can be made at trial. [Emphasis in original.] [32] Consistent with that statement, in Driscoll v. Driscoll, 2009 CanLII 66373 (Ont. S.C.), at para. 14 (citing Robles v. Khun, 2009 BCSC 1162, at para. 12), Lemon J. set out “a helpful list of principles governing interim support motions”, eight in number, including: “[i]nterim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise”: see also Medjuck v. Medjuck, 2019 ONSC 3254, at para. 66. ....
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A. The Law
i. Spousal support legislation
[47] The overall goal of the spousal support provisions of the Divorce Act is to effect “a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses”: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at pp. 849-850; R.L. v. M.F., at para. 39.
[48] Consistent with that goal, in making a spousal support order, s. 15.2(4) of the Divorce Act requires the court to take into consideration “the condition, means, needs and other circumstances of each spouse”, including the factors set out in that provision, namely (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. As well, s. 15.2(6) sets out the objectives that the court should take into account when making a spousal support order. No one of those factors and objectives is paramount and all of them must be considered: R.L. v. M.F., at para. 38; Moge, at p. 852.
[49] In the Reasons, at p. 4, third paragraph, the motion judge demonstrated his awareness of these provisions, stating that he was “mindful” of his obligation to consider those factors and objectives when determining that amount of interim support that should be payable. He also indicated that he appreciated the significance of the “needs and means tests” in making that determination, based on “case-specific analysis”: Reasons, at p. 4, second paragraph.
ii. The SSAGs’ role in determining spousal support
[50] In previous cases, courts have recognized the SSAGs’ role in determining the quantum of spousal support. In Fisher, at para. 95, the Court of Appeal characterized the SSAGs as being a “useful tool” but noted that the SSAGs “are neither legislated nor binding; they are only advisory. The parties, their lawyers and the courts are not required to employ them.” At para. 96, the court noted the limitations of the SSAGs, including:[The SSAGs] do not apply at all in certain enumerated circumstances, including where spouses earn above $350,000 … or below $20,000…. Importantly, in all cases, the reasonableness of an award produced by the [SSAGs] must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances. [51] Victor correctly points out that the Court of Appeal described the SSAGs as a “presumptive starting point” for calculating spousal support, requiring an “adequate explanation” for departure from their use: Rathee, at para. 32, Slongo v. Longo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105-106. However, in Politis v. Politis, 2021 ONCA 541, 158 O.R. (3d) 230, at para. 29, the Court of Appeal noted that the SSAGs “formulas are intended to be used as tools only and, according to the SSAGs themselves, cannot be applied automatically in every case.” Similarly, in R.L. v. M.F., at para. 54, the Court of Appeal recognized that the SSAGs “could not be applied mechanically or automatically” when the payor’s income is above $350,000, citing Halliwell, at para. 117 and SSAGs, s. 11.1.
[52] As previously noted, the income-sharing formulas set out in the SSAGs generate suggested spousal support amounts, dependent on the income level of the payor. As set out in s. 11 of the SSAGs, a payor’s income level of over $350,000 is characterized a “ceiling”, being the income the level “above which any income-sharing formula gives way to discretion.” Similarly, a payor’s income-level of below $20,000 is called a “floor”, being the income level “below which no support would generally be payable.” Section 11 of the SSAGs referred to very high and very low income cases as “exceptions” to the operation of the SSAGs formulas, but different from the “exceptions” set out in s. 12 of the SSAGs, which apply to “recognized categories of departures from the ranges of amounts and durations for spousal support under the [SSAGs] formulas.”
[53] The operation of the SSAGs formulas when the payor’s income exceeds $350,000 was addressed by the authors of the SSAGs in 2016 in the User Guide, at pp. 56-57, based on principles that emerged in the caselaw to that date, including the following:. 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…. Evidence and argument are required.
[Emphasis in original.] [54] There is no dispute between the parties that the SSAGs are routinely considered in high-income cases. However, I agree with Daniela that this does not mean that the SSAGs are presumptive or mandatory when the payor’s income is above the SSAGs ceiling, particularly in the context of an interim spousal support order that is subject to reconsideration and, if necessary adjustment, at trial.
[55] In R.L. v M.F., an appeal from a final spousal support order where the payor’s income was over $350,000, the Court of Appeal stated, at para. 79:While an argument on the application of the SSAG would generally include various support calculations, the question on appellate review is whether the trial judge made an appropriate and reasonable support order, even absent the benefit of calculations for spousal support: [Citation omitted]. [56] In R.L. v. M.F., as with the matter before us on appeal, the judge below in fact had multiple SSAGs calculations before him. The appeal in that case was dismissed, including the appellant’s argument that the judge failed to perform or receive support calculations for the purposes of calculating the appropriate quantum of spousal support: R.L. v. M.F., at paras. 78-80, 91.
iii. General principles of spousal support orders
[57] A judge making a spousal support order is required to consider and give effect to the factors and objectives set out in the Divorce Act, whether the order is interim or final. However, in previous cases, the judges have recognized the temporary nature of interim spousal support orders as being a relevant consideration when making such an order.
[58] In Sypher, at p. 413, on appeal from an interim spousal support order, the court noted that “the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.” Subsequent case law has provided further guidance for determining interim spousal support, including Driscoll, which set out a “helpful a list of principles governing interim support motions”, at para. 14 [see also Vainshtein v. Vainshtein, 2016 ONSC 3697 (Div. Ct.), at para. 13; Sondhi v. Sondhi, 2022 ONSC 202, at para. 11; Robles, at para. 12]:1. On applications for interim support the [recipient’s] needs and the [payor’s] ability to pay assume greater significance;
2. An interim support order should be sufficient to allow the [recipient] to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
4. The courts should not unduly emphasize any one of the statutory considerations above others;
5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support. . Carrubba-Gomes v. Gomes
In Carrubba-Gomes v. Gomes (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against a "temporary order ... to pay spousal support of $45,000 per month".
Here the court considers the role of appellate deference in setting spousal support:[19] Appeal courts owe significant deference to a first instance decision on support, given its fact-based and discretionary nature: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10-12; R.L. v. M.F., at paras. 20–21. For a spousal support order, that deference is “augmented for payor incomes over $350,000 where the SSAG themselves suggest ‘pure discretion’ as one of two possible approaches”: R.L. v. M.F., at para. 20, quoting Berta v. Berta, 2017 ONCA 874, 138 O.R. (3d) 81, at para. 49; SSAGs, at pp. 112-113.
[20] Support orders should not be overturned “unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong”: Hickey, at para. 11; Holman v. Holman, 2015 ONCA 552, 336 O.A.C. 350, at para. 22. As the Supreme Court stated in Hickey, at para. 12 (see also R.L. v. M.F., at para. 21),Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [21] Appellate courts owe particular deference to interim support orders, given their temporary nature, “designed to establish or maintain a reasonable state of affairs pending trial”: Lokhandwala v. Khan, 2019 ONSC 6346 (Div. Ct.), at para. 5. An appellate court should not interfere with an interim support order “unless it is demonstrated that the order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding”: Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.), at pp. 413-414. . Hui v. Chan [limitations and delay]
In Hui v. Chan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against "the appellant’s application for a lump sum retroactive payment of spousal support".
Here the court considered the burden of proof for spousal support issues, and the effect of delay in seeking it:Burden of Establishing Entitlement
[27] The appellant submits that the trial judge committed an error in law by placing the onus of proof on the appellant to establish entitlement to spousal support in 2015. This is the argument that lies at the heart of this appeal. If this argument fails, it follows that the remaining issues raised by the appellant regarding determination of income and application of the SSAG cannot succeed.
[28] The trial judge expressed concern that the parties did not provide any law regarding delayed applications for spousal support, despite the body of caselaw on this topic and a specific invitation to address this issue. Instead, the appellant advanced a position that the court should disregard the financial arrangement in place between the parties from separation until 2015 and simply consider the claim for spousal support prospectively from the appellant’s requested commencement date.
[29] The trial judge correctly declined to do so.
[30] Justice Daurio opined that the appellant had the onus to provide the evidence (and the supporting SSAG calculations) for the period of 2006 to 2015 to establish that she had an ongoing entitlement to compensatory spousal support for the time period that she claimed (i.e., 2015–2022). The trial judge concluded that the appellant failed to meet this burden.
[31] There is no limitation period in respect of a claim for spousal support under family legislation or the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(c): Kyle v. Atwill, 2020 ONCA 476, 152 O.R. (3d) 59, leave to appeal refused, [2020] S.C.C.A. No. 394. However, the trial judge correctly identified that a lengthy period of delay in bringing a claim is a relevant consideration in the assessment of spousal support claims and the applicability of the SSAG: Quackenbush v. Quackenbush, 2013 ONSC 7547; Hillhouse v. Hillhouse (1992), 1992 CanLII 5983 (BC CA), 74 B.C.L.R. (2d) 230 (C.A.).
[32] This case was not a motion to change an existing order for support, nor was it an application to enforce or vary terms of a domestic contract. Rather, this case was an initial application for spousal support brought pursuant to s. 33 of the Family Law Act for the payment of a lump sum amount (for the period of 2015 to 2022). The appellant does not challenge the trial judge’s finding that the appellant was not entitled to spousal support either on a non-compensatory or contractual basis in 2015. Rather, the appellant argues that, because the trial judge found that the appellant was initially entitled to compensatory spousal support upon separation in 2006, the burden fell to the respondent to establish that she was no longer entitled to spousal support in 2015.
[33] I disagree.
[34] A party seeking spousal support on initial application bears the burden of establishing their entitlement for the period that they are seeking support. As noted by the trial judge, orders for spousal support are intended to recognize the contributions and consequences of spousal partnerships, to ensure that the economic burden of supporting the children is shared, to make fair provision for spouses post-separation and to assist in self-sufficiency, and to relieve financial hardship arising from the breakdown of a relationship: Family Law Act, s. 33(8). These four objectives are viewed as an attempt to achieve an equitable sharing of the economic consequences of spousal relationships and their breakdown: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at para. 74.
[35] The objectives and intended purposes of spousal support orders are equally applicable to applications for spousal support brought immediately upon separation and to applications commenced after prolonged periods of delay. What changes is not the burden of establishing entitlement, but rather the totality of the events and circumstances that the court will consider in determining whether an award of spousal support is required to meet these objectives.
[36] In this case, because of the inadequacy and unreliability of the evidence led regarding the financial arrangements in place for a post-separation period of almost ten years, the court could not find that there was any remaining purpose upon which to base an order for spousal support from 2015 to 2022. The failure of the appellant to provide sufficient (reliable) detail regarding the financial arrangement in place between the parties during this post-separation period, and the justification or rationale for those payments, deprived the trial judge of the ability to assess whether the disadvantages to the appellant arising from the relationship and its breakdown had been alleviated by 2015.
[37] On her own evidence, the appellant acknowledged receiving unclassified tax-free payments from the respondent totalling almost $2.5 million over ten years following separation. If the appellant believed that she was entitled to additional amounts because these payments did not adequately compensate her for the economic consequences of the roles assumed by the parties during the relationship and/or the disadvantages which arose from its breakdown, she had to establish that entitlement. In the eyes of the trial judge, she did not. The trial judge did not err in law or application in reaching this conclusion. . Hui v. Chan
In Hui v. Chan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against "the appellant’s application for a lump sum retroactive payment of spousal support".
Here the court states the appellate SOR applicable to issues of spousal support:[6] The Court of Appeal for Ontario has recently articulated the high standard of review to be applied in determinations of spousal support in R.L. v. M.F., 2025 ONCA 595, at paras. 20–21:[20] The determination of support obligations, including the amount and duration of any order and any entitlement to share in a payor spouse’s post-separation income increases, involves the exercise of considerable discretion by trial judges, giving rise to significant deference on appeal: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10 to 12; Hendriks v. Hendriks, 2022 ONCA 165, 71 R.F.L. (8th) 266, at paras. 17, 40; Scheibler v. Scheibler, 2024 ONCA 191, 100 R.F.L. (8th) 51, at para. 10. As this court noted in Berta v. Berta, 2017 ONCA 874, 138 O.R. (3d) 81, at para. 49: “This deference is augmented for payor incomes over $350,000 where the SSAG themselves suggest ‘pure discretion’ as one of two possible approaches”.
[21] Absent material error, such as a serious misapprehension of the evidence or an error of law, an appellate court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Ballanger v. Ballanger, 2020 ONCA 626, 2 C.C.L.I. (6th) 15, at para. 23. In Johanson v. Hinde, 2016 ONCA 430, W.D.F.L. 4103, at para. 1, this court explained the rationale behind the particular deference owed to factual findings of trial judges in family law litigation: “The deferential standard of review of decisions of trial judges on questions of fact, and questions of mixed fact and law, is designed to promote finality and to recognize the importance of trial judges' appreciation of the facts. If anything, this is more accentuated in family litigation.” See also: Hickey, at paras. 11 to 12.
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