Court of Appeal for Ontario
Judges: Roberts, Miller and Pomerance JJ.A.
Between
R.L. Applicant (Appellant)
and
M.F. Respondent (Respondent)
Counsel
Heather Hansen and Jonathan Robinson, for the appellant
Judith Nicoll and Vanessa Lam, for the respondent
Heard: January 10, 2025
On appeal from the judgment of Justice Marvin Kurz of the Superior Court of Justice, dated October 25, 2023.
L.B. Roberts J.A.:
A. Overview
1This appeal concerns the determination of spousal support in the context of a 14-year marriage between a high-income earning payor spouse and a high-income earning recipient spouse who is receiving child support.
2The appellant's appeal turns mainly on the trial judge's order that he pay $20,000 in monthly spousal support for a further 9.5 years. He repeats the arguments rejected by the trial judge that the respondent has no entitlement to spousal support because of her high imputed income, her lack of economic disadvantage arising from the appellant's economic success, and the fact that her non-compensatory needs are satisfied by the child support payments of $24,661/month plus $6,627/month in child-related special/extraordinary expenses. Alternatively, he claims that the trial judge made several errors in principle in his calculation of spousal support and his award of prejudgment interest on the equalization payment to the respondent.
3The respondent submits that the appellant's arguments amount to a thinly veiled request for this court to revisit the trial judge's findings. Deference dictates that we reject them.
4I would dismiss the appeal. I remain unpersuaded that the trial judge made any error requiring appellate intervention and agree with his careful analysis and conclusions.
B. Background
5The parties began to cohabit in or about July 2005. They married on February 18, 2006 and separated on February 24, 2020. The appellant works as a financial advisor. The respondent is a respirologist. Since the birth of the parties' children, the respondent has worked three days per week or on a 60% basis. The parties' two daughters are now close to 19 and 17 years of age. The eldest attends university away from home. Both daughters otherwise live with the respondent. The children have always been in the respondent's primary care.
6Post-separation, the parties and their children resided together in the matrimonial home for over twenty-two months. After the parties' separation in February 2020, the appellant paid the full house expenses until October 2021 when the parties agreed that he would pay interim spousal support of $14,000 per month, which he has done since that time.
7The parties settled the issue of child support and largely settled the issue of s. 7 expenses before trial. The appellant agreed, based on his 2021 income of $2,032,000, to pay $24,661 in monthly child support, $79,560 on account of retroactive child support, plus the educational and other special and extraordinary expenses of the children of $6,627 per month. The principal financial issues remaining for trial related to equalization of net family property and spousal support.
8In an endorsement dated May 12, 2024 (reported at 2023 ONSC 2885), the trial judge determined the issues of parenting time, the matrimonial home, and spousal support. The trial judge ordered the sale of the matrimonial home, determined property valuation figures, and ordered that the appellant pay the respondent the sum of $474,744.36 on account of the equalization of net family property. The equalization payment was to come from the appellant's share of the net proceeds of sale of the matrimonial home. Other than the order of prejudgment interest on the equalization payment, the property issues are not the subject of this appeal.
9As for spousal support, the trial judge found that the respondent had a claim to spousal support on both a compensatory and non-compensatory basis. He described the parties' relationship and division of parental and household duties as follows:
There is no question that the parents adopted a somewhat traditional division of labour during the course of their marriage. The [appellant] worked long hours as the primary breadwinner. The [respondent] was the primary caregiver even though she earned a significant income on her own with her part-time medical work. She took a one-year leave of absence following the birth of each child. She guided the children in their academics and activities... Each daughter spent the lion's share of parenting time with the [respondent].
There is no dispute that the [respondent] is the one who arranged the enrichment and extra-curricular activities that led to the children's achievements. She was available to assist the children, whether with daily homework assistance or transport to their activities (a role shared by the Grandmother).
10The trial judge found that the appellant's "success has exacted a heavy price in his relationship with each of the [respondent] and their two daughters. He was often absent as the children grew up."
11With respect to the effect of the respondent's role on the appellant's career success, the trial judge found that:
The [respondent's] choice to work part-time did assist the [appellant] in his banking career. It freed him to work the long hours that were the prerequisite to his success. She continued her part-time work post [the date of separation]. But in this case, the [appellant's] gain is not coincident with the [respondent's] ongoing disadvantage. … I do not find that the [respondent] is any less able to fully maximize her earning potential now that if she had worked full time throughout the marriage. [Emphasis added.]
12The trial judge reached the following conclusion regarding the reasonableness and duration of the respondent's caretaking role during the marriage:
Here, I accept that in the circumstances of this particular high-income family, including the ages of the children, their experience of post-separation turmoil as set out above, and the arrangements during the marriage, it was reasonable for the Mother to continue to work on a part-time basis while the youngest child was 11 years old. Based on those factors, I am also willing to accept that the Mother's part-time work was required by the needs of the children until [the younger child] B. turned 14, in June 2022 but not thereafter.
13The trial judge rejected the respondent's argument that she should indefinitely work on a part-time basis. He found that she had chosen part-time employment in her medical speciality "even though many of her colleagues work on a full-time basis and her children are now close to seventeen and fifteen years of age" and that "[w]hile it was reasonable when the children were much younger, that is no longer the case. The [respondent's] underemployment is not presently required by the needs of the children." He therefore imputed a yearly income of $550,000 to the respondent.
14While noting that a mere disparity of income that would generate an amount under the Spousal Support Advisory Guidelines ("SSAG") formulas does not automatically lead to entitlement, the trial judge determined that the respondent had an entitlement to non-compensatory support because of the length of the parties' marriage and the financial interdependence that arose during the marriage. He found that the respondent's stronger claim and the one that could allow her to share in any post-separation increase in the appellant's income was on a compensatory basis.
15The trial judge concluded that the respondent had a moderate compensatory entitlement to spousal support, "neither strong nor weak." He found she was entitled to share in the appellant's increased income since separation. Based on the post-separation income of $2,031,822 for the appellant and the attributed income of $550,000 for the respondent, the trial judge ordered that the appellant pay the respondent monthly spousal support of $20,000, commencing January 1, 2023 and terminating on August 1, 2032. He explained his calculation of spousal support as follows:
I find that ongoing spousal support of $20,000 per month is well above the [respondent's] needs and about $14,000 per month above the 50/50 NDI figure. It fairly compensates the [respondent] for the role she played during the marriage and the advantages that the [appellant] accrued from that role. In light of the other payments that the [appellant] is required to make to the mother, including child support and equalization, it also fairly addresses the non-compensatory aspects of the [respondent's] support claim. [Emphasis added.]
16In three subsequent endorsements, the trial judge disposed of the issues of retroactive spousal support, prejudgment interest and costs. On October 25, 2023, the trial judge determined that neither party owed anything to the other for retroactive spousal support from the date of separation to December 31, 2022. On November 14, 2023, the trial judge ordered that the appellant pay prejudgment interest at the Courts of Justice Act rate on the $474,744.36 equalization payment from the time of separation, February 24, 2020, until judgment. In a costs endorsement dated December 13, 2023 (reported at 2023 ONSC 6941), he determined that there would be no order as to costs.
C. Issues
17The appellant raises the following issues:
(1) Re spousal support:
i) Did the application judge err in ordering that the respondent had any entitlement to spousal support in the face of his income imputation finding, which ought to have wholly mitigated entitlement on any basis?
In the alternative:
ii) Did the trial judge err in fixing the quantum and duration of spousal support?
iii) Did the trial judge err in ordering spousal support on the appellant's post-separation increase in income in the face of both his income imputation finding and his finding that the respondent's compensatory claim was only moderate?
iv) Did the trial judge err by failing to perform or receive support calculations for the purpose of calculating the appropriate quantum of spousal support?
(2) Re prejudgment interest:
i) Did the trial judge err in ordering prejudgment interest on the equalization payment owing to the respondent by the appellant?
D. Analysis
(a) The respondent's motion to quash
18As a preliminary matter, the parties advised the court that they had settled the respondent's motion to quash the appellant's appeal. We were not advised of the terms of the settlement. The motion to quash was based on the appellant's failure to comply with various court orders, including the payment of consent child support which is not under appeal. We allowed the respondent to withdraw her motion to quash because the appellant had substantially complied with the orders before the hearing of the appeal and assured the court that there would be no further breaches.
(b) The Appeal
(1) Standard of Review
19I start my analysis by noting that a high standard of appellate review applies to all the appellant's grounds of appeal. This is not disputed by the parties.
20The 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".
21Absent 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.
22The same high standard of review applies to a trial judge's discretionary prejudgment interest award. Absent reversible error, there is no basis to interfere with a trial judge's discretionary decision to order prejudgment interest: Debora v. Debora, 2006 CanLII 40663 (ON CA), 83 O.R. (3d) 81 (C.A.), at para. 93.
23As I shall explain, the appellant has not reached this high appellate review threshold. He has unearthed no legal error in the trial judge's careful and thorough analysis. Rather, his argument effectively focusses on the trial judge's factual findings without demonstrating any error in principle or palpable or overriding error.
(2) Spousal Support
(i) The trial judge did not err in finding an entitlement to spousal support.
24The core of the appellant's complaint on this ground is reflected in the following submissions memorialized in para. 39(a) of the appellant's factum:
Entitlement: how can a support claim have a compensatory element when there is a finding that the recipient has suffered zero economic loss as a result of the roles assumed during the relationship? A finding of imputation necessarily requires the trier of fact to conclude that the recipient is both capable of earning income at the imputed level and that it is possible for that income to be earned…. [Emphasis in the factum.]
25This submission ignores that the legislated objectives of spousal support, set out in s. 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3, include not only recognizing any economic disadvantage but also economic advantage:
Objectives of a spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage. [Emphasis added.]
26The law is clear that in considering an award of spousal support, a trial judge is obliged to consider all the factors listed in the Divorce Act. No one factor is paramount: Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448, 98 B.C.L.R. (4th) 23, at para. 51; Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 852; Miglin v. Miglin, 2003 SCC 24, 1 S.C.R. 303, citing Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 35.
27Spousal support is driven by both compensatory and non-compensatory or needs-based considerations: Miglin, at para. 201. The appellant's argument focuses only on errors in assessing need, despite the fact that the respondent's strongest entitlement to support was compensatory to "recognize any economic advantages" arising from the marriage (Divorce Act, s. 15.2(5)(a)), to compensate her for her partnership role during a marriage of nearly 14 years, and to give her a continued share of the fruits of that partnership: Plese v. Herjavec, 2020 ONCA 810, 49 R.F.L. (8th) 28, at para. 40.
28The appellant's submissions collapse the difference between the compensatory and non-compensatory bases for spousal support and show no consideration of any basis for entitlement other that the respondent's needs. This is misguided: Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81, at para. 65. Non-compensatory support entitlement centres on the needs of the spouses and their respective means; compensatory support recognizes an entitlement to support as compensation for the economic disadvantages to the recipient spouse or the economic advantages conferred on the payor spouse as a result of the roles assumed by the parties during their marriage: Bracklow, at para. 41. An approach to spousal support grounded entirely on needs excludes the compensatory nature of support: Droit de la famille – 1221, 2012 QCCA 19, at paras. 44, 56.
29The determination of spousal support is highly individual and discretionary. As Professors Carol Rogerson and Rollie Thompson state in their introduction to the SSAG (Ottawa: Department of Justice, 2008):
Bracklow emphasized the highly discretionary, individualized nature of spousal support decisions. The Court was clear that the Divorce Act endorses no single theory of spousal support and must retain flexibility to allow judges to respond appropriately to the diverse forms that marital relationships can take. The Court presented spousal support determinations as first and foremost exercises of discretion by trial judges who were required to "balance" the multiple support objectives and factors under the Divorce Act and apply them in the context of the facts of particular cases.
30Income imputation and the fact that a spouse has not suffered material career setbacks or prejudice do not preclude a spousal support claim. This is made clear in the provisions of s. 15.2(4) and (6) of the Divorce Act. Specifically, as stipulated in s. 15.2(6)(a) and (b), compensatory entitlement may arise where, as a result of the parties' roles during the marriage, one spouse has conferred economic advantages on the other notwithstanding the absence of economic disadvantage. This typically includes one spouse taking on more of the family's household or child-rearing responsibilities, freeing the other to focus on career-building and income-earning. See: Moge, at p. 860. The spouse who has shouldered household and family responsibilities may be entitled to compensatory spousal support to share in the augmented earning capacity of the other spouse: Zacharias v. Zacharias, 2015 BCCA 376, 80 B.C.L.R. (5th) 54, at para. 26.
31Here, the respondent's role in the marriage reflected the parties' joint decision that she would work part-time and shoulder the bulk of the home and childcare responsibilities, thus allowing the appellant to become highly successful in his career. As a result, the respondent's career became secondary to the appellant's and secondary to her role as wife and mother. The fact that the respondent continues to earn a good income post-separation does not disentitle her to spousal support: Allaire v. Allaire, 2003 CanLII 26263 (ON CA), 170 O.A.C. 72 (C.A.), at para. 21.
32A court is not required to decide on one basis of support to the exclusion of the others; the doctrine of equitable sharing, founded on the concept of economic merger, is the overarching principle to be focused on by the court: Chutter v. Chutter, 2008 BCCA 507, 86 B.C.L.R. (4th) 233, at para. 49; Sea v. He, 2024 BCCA 161, 89 B.C.L.R. (6th) 1, at para. 50.
33The SSAG explain the concept of economic merger, in s. 7.2, as follows:
We use this term to capture the idea that as a marriage lengthens, spouses merge their economic and non-economic lives more deeply, with each spouse making countless decisions to mould his or her skills, behaviour and finances around those of the other spouse
The length of marriage then determines the extent of the claim to be protected against this loss of the marital standard of living.
34The merger of the parties' economic lifestyles creates a joint standard of living which must be considered in the spousal support analysis: Linton v. Linton, 1990 CanLII 2597 (ON CA), 1 O.R. (3d) 1 (C.A.), at para. 79. As the Supreme Court stated in Moge, at p. 849, this approach is consistent with the notion that "marriage is, among other things, an economic unit which generates financial benefits" and that, as the Divorce Act reflects, "partners should expect and are entitled to share those financial benefits." Specifically, s. 15.2 of the Divorce Act recognizes that marriage is a form of partnership with economic consequences depending on the roles performed by the spouses. In particular, the assumption of childcare and household management responsibilities must not be viewed as having a reduced economic value in relation to the role of the higher earning spouse. The Supreme Court further recognized in Moge, at p. 870, that: "As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution."
35Applying these principles to the present case, I see no error in the trial judge's conclusion that the respondent was entitled to compensatory spousal support. As earlier noted, the trial judge considered all the relevant factors, including s. 15.2(4) and (6) of the Divorce Act, and determined that the respondent's "choice to work part-time did assist [the appellant] in his banking career" and "freed him to work the long hours that were the prerequisite to his success." The trial judge concluded, correctly in my view, that the absence of coincident ongoing career or economic disadvantage to the respondent did not preclude his finding that she had "a moderate compensatory entitlement to spousal support" and an entitlement to non-compensatory support because of the length of the parties' marriage and the financial interdependence that arose during the marriage. These findings were rooted firmly in the record and supported by ss. 15.2(4) and (6) of the Divorce Act and the governing principles of spousal support.
36The trial judge first addressed entitlement as the important threshold issue and pre-condition to spousal support: Cassidy, at para. 64; Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 108; Plese, at para. 60. As the trial judge recognized, there is no presumptive entitlement to spousal support: Kerr v. Baranow, 2011 SCC 10, 1 S.C.R. 269, at para. 208. Nor does income disparity alone determine entitlement to spousal support: Aquila v. Aquila, 2016 MBCA 333, 397 D.L.R. (4th) 102, at para. 51; Farrar v. Farrar, 2003 CanLII 15943 (ON CA), 63 O.R. (3d) 141 (C.A.), at para. 60. The trial judge correctly plumbed the key question of why there was an income disparity between the parties and how the disparity related to the compensatory or non-compensatory basis for spousal support entitlement.
37The trial judge also properly recognized that, in the context of a longer marriage involving children and where the recipient spouse supported the payor's career advancement, there can be an entitlement to spousal support even if the recipient spouse has a relatively high income. Even if not disadvantaged by the marriage in that there is no loss of competitive advantage in the workforce, the recipient spouse may nevertheless have been disadvantaged by the marriage breakdown, having lost to some degree the standard of living enjoyed during the marriage, given the length of the marriage and the lifestyle the parties maintained: Gilliland v. Gilliland, 72 R.F.L. (6th) 88 (Ont. S.C.), at para. 171; Gonabady-Namadon, at para. 57; McKenzie v. McKenzie, 2014 BCCA 381, 66 B.C.L.R. (5th) 59, at para. 108; Cassidy, at para. 69.
38The trial judge started his analysis of this issue with reference to ss. 15.2(4) and (6) of the Divorce Act. He correctly recognized that no one of these Divorce Act factors and objectives is paramount or should be given priority, and that all of them must be considered: Moge, at p. 852; Bracklow, at para. 44.
39The overall goal of the Divorce Act's support provisions strives for "a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown": Moge, at pp. 849-850. Marriage is an economic union that creates interdependency: Aquila, at para. 68. As also noted in Moge, at p. 848, these consequences are not limited to economic disadvantage but include economic benefits.
40Moge further instructs, at p. 849, that "[e]quitable distribution can be achieved in many ways: by spousal and child support, by the division of property and assets or by a combination of property and support entitlements." However, a large property award does not necessarily preclude entitlement to spousal support: Chutter, at para. 81; and see, for example, Berta, at paras. 20-21. The trial judge's consideration of these factors, as I earlier noted, demonstrate that he followed this approach.
41The trial judge found that the respondent had a non-compensatory support claim. This finding reflects the relative nature of the concept of self-sufficiency in the spousal support context and its relationship to both the marital standard of living and the other spouse's post separation standard of living: Macdonald v. Macdonald, 2017 NSCA 34, 95 R.F.L. (7th) 76, at paras. 41, 43; Hodgkinson v. Hodgkinson, 2006 BCCA 158, 53 B.C.L.R. (4th) 52, at para. 69. The respondent was entitled to share in the fruits of the appellant's labours enabled by her primary responsibility for the household and childcare.
42The fact that the recipient spouse is highly trained and capable of stepping back into the work force and earning investment income from her share of the capital assets does not automatically mean that there is no entitlement to support: Hodgkinson, at para. 68; Chutter, at para. 59. That capacity to earn income from capital assets and employment must be related to the standard of living the parties enjoyed during marriage or to the standard of living of the payor spouse after trial, or advert to the time lag that would be involved in earning income immediately after marriage. The recipient spouse is entitled to a degree of comfort well beyond "basic needs". The arrangement between the parties during marriage required consideration of spousal support from the perspective of the standard of living that is still reasonably available to them: Hodgkinson, at para. 74. The fact that a spouse works outside the home does not make her economic choice of working part-time to assume the lion's share of the home and child responsibilities any less traditional: Allaire, at paras. 19, 74.
43The trial judge made no error in determining that the respondent had a moderate compensatory and a non-compensatory entitlement to spousal support. He reached this conclusion after a thorough and careful review of the evidence, the relevant provisions in the Divorce Act and the applicable principles from the governing jurisprudence. There is no basis for appellate intervention.
(ii) The trial judge did not err in fixing the quantum and duration of spousal support.
44The trial judge determined the following range of ongoing monthly spousal support figures that the SSAG yielded:
| Range | Monthly Payment | % of NDI Gross | Annual Income from all |
|---|---|---|---|
| High: | $34,698 | 63.1% M / 36.9% F | $1,546,580 M / $873,004 F |
| Mid: | $29,991 | 61.1% M / 39.9% F | $1,493,861 M / $925,721 F |
| Low: | $25,298 | 59% M / 41% F | $1,441,162 M / $978,440 F |
| 50/50: | $4,640 | 50% M / 50% F | $1,209,670 M / $1,209,670 F |
45The appellant submits that the trial judge erred by failing to appreciate the role the Net Disposable Income ("NDI") analysis should play when considering what quantum of support to order and that it was an error to make a support order that leaves the appellant with 56% of NDI. The trial judge further erred, according to the appellant, by fixing spousal support for a further 9.5 years and in an amount that exceeds all reasonable need. Finally, the appellant maintains that the trial judge erred by failing to provide for a mechanism to review spousal support.
46I am not persuaded by the appellant's arguments. I address each in turn.
47First, I consider the trial judge's approach to NDI. As the trial judge noted, NDI is not a target per se but an important way to test the reasonableness of different outcomes: Berger v. Berger, 2016 ONCA 884, 85 R.F.L. (7th) 259, at paras. 115-123. A support order that leaves the appellant with just a little over half of the parties' collective net disposable income is not unreasonable in the context of a marriage of this length and the allocation of roles.
48There is no NDI upper limit for a support recipient: Andrews v. Andrews, 1999, 45 O.R. (3d) 577; Adams v. Adams, 2001 CanLII 8527 (ON CA), 15 R.F.L. (5th) 1. In his helpful article, "SSAG FAQS 2022, Your Frequently (Or Occasionally) Asked Questions about the SSAG and Some 'Answers'": March 2022, at p. 15 Professor Thompson explained the correct use of NDI in the fixing of quantum and duration of spousal support:
Apart from shared custody cases, there is no NDI "target" in with child support formula cases, but NDI (or Monthly Cash Flow) is an important factor location in the range. What matters in these cases is not just NDI percentages, but the actual net disposable income dollars in each household. Keep in mind, ability to pay is the real limit on spousal support in most with child support cases, give the statutory priority to child support. [Emphasis in original.]
49The family's NDI and the proportionate share of the NDI that is allocated to each party under the ranges generated by the SSAG are factors to take into account. The overarching consideration in determining the amount and duration of support is fairness, having regard to all the relevant circumstances.
50Here, the trial judge considered all the relevant circumstances, including the NDIs produced by the high, medium, low and 50/50 ranges, and fixed support below the low end of the SSAG range. He adverted to the correct governing principles, including those articulated by Professor Thompson, which I have just reviewed. Importantly, he looked at the NDIs produced by the ranges in the larger context of the appropriate duration and amount of support to be awarded. I see no error in his approach.
51This takes me to the appellant's second argument that the trial judge erred in setting support at $20,000 per month and for 9.5 years, which, according to the appellant, exceeds all reasonable need.
52I have already addressed the trial judge's approach to compensatory and non-compensatory support. It is therefore unnecessary to repeat my discussion of why the appellant's argument about "reasonable need" misses the mark in this context.
53I turn next to the duration and amount of support ordered by the trial judge. Again, I see no error in the trial judge's approach by fixing the amount and duration of the respondent's spousal support below the lower end of the SSAG. In doing so, he followed the guidance provided by the authors of the SSAG and the governing principles in the case law interpreting them.
54Having first determined entitlement to spousal support, the trial judge correctly recognized that the SSAG could not be applied mechanically or automatically because the appellant's income was above $350,000: Halliwell, at para. 117; SSAG s 11.1. He properly used the SSAG as a tool to assist in the individualized, fact-specific analysis that he was obliged to undertake. He also understood that his analysis required a consideration of the effects of the equalization payment and child support: Halliwell, at 107. He understood that, as this court noted in Halliwell, at para. 116: "Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine a location within that range." The trial judge noted that no technical formulae apply above the $350,000 ceiling and that the same factors that go to entitlement have an impact on quantum which includes both amount and duration: Bracklow, at para. 50.
55Above the $350,000 ceiling, discretion and case specific determinations are required. Certainly, there is no requirement to input the payor's income at the mid-way point between the SSAG $350,000 ceiling and the payor's actual income: Plese, at para. 57; the full amount of the payor's income can be inputted as the appropriate amount: Dancy v. Mason, 2019 ONCA 410, 25 R.F.L. (8th) 9, at para. 18. The fact that the SSAG do not automatically apply after the payor's gross income reaches $350,000 per year does not constitute a hard ceiling or cap: Plese, at para. 27. Rather, as the trial judge noted, it is an income level above which the court can exercise discretion to apply the exact results generated by the SSAG formula or determine the appropriate amount and duration of support within, above or below the ranges produced: Hathaway v. Hathaway, 2014 BCCA 310, 376 D.L.R. (4th) 670, at para. 66, leave to appeal refused, [2014] S.C.C.A. No. 412; Halliwell, at para. 110.
56The trial judge understood that the basis of entitlement is important because it determines location within the formula ranges or justifies departure from the ranges: Halliwell, at paras. 110, 116. He determined that this was a mid-range marriage of about 14.5 years. He considered that the SSAG suggest an indefinite term of support with a duration range of 7.25 to 14.5 years. He concluded that the location within that range in this case should be below the lower end.
57The trial judge's approach to fixing support below the lower end of the SSAG is in keeping with the approach followed in some other compensatory support cases involving high income-earning payor and recipient spouses with good incomes and career prospects. For example, in Gonabady-Namadon, the British Columbia Court of Appeal overturned the trial judge's finding that the recipient spouse was not entitled to spousal support, but awarded support below the lower end of the range because the recipient's substantial professional income and undiminished future prospects did not merit long-term support at the high end of the range in that case: at para. 61.
58However, choosing the lower end of the SSAG is not mandatory. The Gonabady-Namadon decision reflects the principle that in cases of high-income payor and recipient spouses above the $350,000 threshold, SSAG ranges still must be calculated and discretion must be exercised by the court to determine the appropriate amount and duration of support having regard to all the circumstances. An individualized fact-specific assessment is always required: Plese, at paras. 26, 56; Hathaway, at para. 48; Rollie Thompson, "It's Complicated: How Entitlement Wends Its Way In and Out of the SSAG", (Paper delivered at the 15th Biennial Family Law Conference 2025, July 3, 2015), at p. 19; Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User's Guide (Ottawa: Department of Justice Canada, 2016), at p. 57.
59I therefore reject the appellant's arguments about the duration and amount of spousal support awarded. I see no error in the trial judge's approach or in the exercise of his discretion.
60Finally, I consider the appellant's third argument. The appellant's complaint of a lack of a review mechanism mirrors the argument rejected by this court in Plese. In Plese, the appellant submitted that the trial judge erred in ordering indefinite support and in making it binding on his estate so that there could be no review of the order. This court disposed of that argument by noting, at para. 64: "There is nothing in the trial judge's order or in the underlying reasons to deprive the appellant of his right to seek a review should a material change occur in either his or the respondent's circumstances." The same applies in the present case.
(iii) The trial judge did not err in ordering spousal support based on the appellant's post-separation increase in income.
61The appellant argues that the trial judge erred in ordering spousal support based on his post-separation increase in income. He submits that the spousal support order did not adequately consider "the condition, means, needs and other circumstances of each spouse, including … (b) the functions performed by each spouse during cohabitation". He claims the trial judge erred by giving "insufficient weight" to the factors that he believes are more important. He claims that the trial judge's weighing of the factors led to the respondent receiving support beyond what was experienced during the marriage.
62I am not persuaded that the trial judge made any reversible error.
63I start with the governing principles applied by the trial judge in his analysis of this issue.
64A recipient spouse is not automatically entitled to increased spousal support based on a payor spouse's post-separation increase in income: Patton-Casse v. Casse, 2012 ONCA 709, 29 R.F.L. (7th) 210, at para. 26.
65Professor Thompson helpfully sets out the test for sharing:
The basis for entitlement is critical to the sharing and the extent of sharing, of any post-separation income increase. The broad question asked in these cases is: the broad test for sharing: is there a "link" or a "connection" between the marriage/cohabitation and the increased payor income after separation? A link or connection is much more likely to be found where the claim is compensatory, while not likely in most non-compensatory cases. [Thompson, "It's Complicated", at pp. 8-9.]
66As Professor Thompson goes on to explain, a compensatory basis for entitlement may provide a stronger claim for sharing in post-separation income. As I earlier reviewed, this is because compensatory support is based on the principle that a payee spouse is entitled to compensation for the economic advantages conferred on the payor spouse and to share in the related increase to the fruits of the marital partnership to which the payee spouse contributed and which would have occurred had the spouses continued to cohabitate. The existence of a compensatory element to a support claim is therefore an important factor in determining entitlement to share in post-separation increases in income: Rémillard v. Rémillard, 2014 MBCA 101, 379 D.L.R. (4th) 325, at paras. 132, 135; Kinsella v. Mills, 2020 ONSC 4785, [2020] O.J. No. 3668, at para. 431; Horner v. Horner, 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561 (C.A.), at para. 51.
67The recipient must demonstrate a contribution. It can be a direct or indirect contribution: Dancy, at paras. 11-13. It is not tied to a "causal connection" test: Moge, at p. 861.
68The determination of whether there should be any sharing of income increases, and if so, the extent of any such sharing, must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation. The Divorce Act factors and objectives in section 15.2(4) and (6) must inform the overall analysis: Kinsella, at para. 431; Linn v. Frank, 2014 SKCA 87 48 R.F.L. (7th) 34, at para. 111.
69The analysis should therefore include consideration of the length of the relationship, the extent of the recipient's contributions and sacrifices both during the relationship and post-separation and the duration of time during which those efforts and sacrifices were made: Kohan v. Kohan, 2016 ABCA 125, 77 R.F.L. 44, at paras. 37-38; Dancy, at paras. 11-17; Helle v. Helle, 2019 BCCA 97, 22 B.C.L.R. (6th) 133, at paras. 35-40.
70Important considerations in the analysis are whether the recipient's efforts and contributions during and after the relationship contributed to the payor's financial advancement during the relationship and post-separation. These include the expertise the respondent acquired during the parties' relationship and the extent to which the respondent found himself in favourable circumstances as a result of the joint enterprise of the marriage: Helle, at para. 39, leave to appeal to SCC refused, 38619 (September 26, 2019); Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at para. 75; Hartshorne v. Hartshorne, 2009 BCSC 698, 70 R.F.L. (6th) 106, at paras. 113, 116-117, rev'd on other grounds, 2010 BCCA 327; Dancy, at para. 11; Patton-Casse, at paras. 26-27; see also Hersey v. Hersey, 2016 ONCA 494, at para. 20.
71Evidence that the recipient's sacrifices and contributions during the relationship supported the payor's financial progression post-separation will typically support a sharing of the post-separation income and a higher amount of such sharing. The various means by which a spouse's contributions and sacrifices can support the other spouse's success both in the short and long-term are broad. These include for example, assuming primary responsibility for home-management matters, taking primary childcare responsibilities during and/or after the relationship, assisting in the establishment and operation of the payor's business or subordinating their career to that of the payor so that the payor could focus on the development of their skills and career: Hartshorne, at para. 117; Helle, at para. 40. The fact that the recipient spouse has continued to be a primary caregiver for the children post-separation is a factor that supports a sharing of post-separation income increase, since this often allows the payor to continue to focus on their career advancement: Kinsella, at para. 431.
72Evidence that the knowledge, skills, expertise, credentials and/or connections that enabled the payor to increase their income following the separation were acquired and developed during the relationship is a factor that will favour sharing of post-separation income increases: Hartshorne, at para. 114; Kohan, at para. 39. The closer the temporal link between the separation and the increase in income, the more likely it is that the court will find that the recipient's efforts support the other party's post separation financial success: Kohan, at paras. 38-39; Thompson v. Thompson, 2013 ONSC 5500, at para. 103.
73The court should look at whether there were any changes in the payor's career post-separation that explain the increase in income such as a new job, position or business reorganization. However, in these circumstances, the court must still consider whether the change in position was attributable to the knowledge, skills and experience that the payor had acquired during the relationship with the support of the recipient's efforts: Hartshorne, at paras. 115-116; Patton-Casse, at para. 26.
74In sum, a longer traditional marriage with children will justify full or substantial sharing of post-separation income increases. Where there is an integration of personal and financial affairs during the course of the marriage and the recipient's sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant, the court will be more likely to find a connection between the recipient spouse's role in the relationship and the payor's ability to achieve higher earnings following the separation.
75The trial judge followed these governing principles and concluded that the calculation of the appellant's income for ongoing spousal support purposes should include his present income. The appellant's contention that the trial judge did not consider all relevant factors is belied by the trial judge's careful and detailed reasons.
76The appellant's argument fails to account for the reality that sharing in post-separation increases in income is not an all or nothing proposition. As the trial judge did here, partial sharing was accomplished by the use of location in the range: Kirvan v. Kirvan, 2016 ONSC 7712, at paras. 190-191, 198-199, 219-220, 227-228; Hamilton v. St. Denis, 2019 ONSC 2766, at para. 54. The trial judge relied on the lower end of the higher post-separation SSAG range, which had the effect of reducing the respondent's degree of sharing.
77The appellant asks this court to re-weigh the factors properly considered by the trial judge. I would dismiss this ground of appeal.
(iv) The trial judge did not fail to perform or receive support calculations for the purpose of calculating the appropriate quantum of spousal support.
78This argument can be disposed of summarily. The parties provided support calculations to the trial judge to which he referred in his reasons. I note that the appellant's closing submissions also included a chart that summarized different support scenarios. The appellant attempted to file last-minute additional support calculations; he elected to proceed without them to avoid the delay of an adjournment that the trial judge would have granted so that the respondent and her counsel could review them.
79While 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: Cassidy, at paras. 60-61; Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 103.
80There was no error here.
(3) The trial judge did not err by ordering prejudgment interest on the equalization payment.
81Relying on this court's decision in Burgess v. Burgess, 1995, O.R. (3d) 547 (C.A.), the appellant argues that the trial judge erred in principle by not recognizing and applying an exception to the general rule of awarding prejudgment interest on an equalization payment. The appellant submits that the trial judge failed to turn his mind to the required statutory considerations under s. 130(2) of the Courts of Justice Act, when making his order of prejudgment interest.
82I am not persuaded by these submissions.
83The standard of review is as this court noted in Burgess, at para. 18, citing Starkman v. Starkman, 1990 CanLII 6793 (ON CA), 75 O.R. (2d) 19, at p. 26: "prejudgment interest is within the discretion of the trial judge and, unless it can be shown that the judge did not consider the appropriate principles or did not act judicially, the exercise of his discretion will not be interfered with."
84Section 128(1) of the Courts of Justice Act creates a legislative presumption in favour of awarding prejudgment interest, providing that:
A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.
85The presumptive award of prejudgment interest is subject to exceptions and exclusions in ss. 128(2)-(4), none of which apply here, and to the court's discretion under s. 130:
(1) The court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129,
(a) disallow interest under either section;
(b) allow interest at a rate higher or lower than that provided in either section;
(c) allow interest for a period other than that provided in either section.
(2) For the purpose of subsection (1), the court shall take into account,
(a) changes in market interest rates;
(b) the circumstances of the case;
(c) the fact that an advance payment was made;
(d) the circumstances of medical disclosure by the plaintiff;
(e) the amount claimed and the amount recovered in the proceeding;
(f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and
(g) any other relevant consideration.
86As a rule, a payor spouse is required to pay prejudgment interest on an equalization payment owing to the payee spouse, as this encourages timely settlement of equalization claims: Burgess, at para. 23. Accordingly, prejudgment interest may be awarded to reflect the value of money wrongfully withheld from the recipient spouse and to discourage delaying tactics: M.R. v. G.M., 2016 NBCA 33, 450 N.B.R. (2d) 389, at paras. 11-13.
87There are exceptions to the general rule. Exceptions may arise "where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generate no income, and the payor spouse has not delayed the case being brought to trial": Burgess, at paras. 26, 28.
88As this court further explained in Burgess, at paras. 32, 35, which involved a spouse's immediate entitlement to a share in a future pension, the rationale behind the exceptions to the general rule flow from the fact that the payee could not "claim to have been kept out of money owed at the date of trial", nor was the pension "generating any money which would have been available for the payment of interest."
89I am not persuaded that this falls within the exceptions noted in Burgess. The parties settled the equalization amount owing to the respondent and agreed that its payment would come out of the appellant's share of the matrimonial home. Notably, there was no objective evidence that the equalization payment had to come out of his share of the matrimonial home or that the appellant did not have the ability to pay the equalization amount prior to the trial judgment: Anderson v. McWatt, 2016 ONCA 553, at paras. 23-24.
90I agree with the trial judge's conclusion that there is no reason to depart from the general rule and deny the respondent her statutory entitlement to prejudgment interest on the equalization payment. I see no error in the exercise of the trial judge's discretion.
E. Disposition
91I would dismiss the appeal.
92I would award the respondent her appeal costs in the agreed upon, all inclusive amount of $22,500.
Released: August 26, 2025
"L.B.R."
"L.B. Roberts J.A."
"I agree. B.W. Miller J.A."
"I agree. R. Pomerance J.A."
Footnote
1Pursuant to s.70 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, this appeal decision is initialized to protect the privacy interests of the minor children involved in the trial decision. That decision contains highly sensitive information related to the parenting application. The trial judge initialized his reasons on that basis and this decision is initialized to preserve that protection.
