Carrubba-Gomes v. Gomes, 2025 ONSC 6377
DIVISIONAL COURT FILE NO.: 019/25
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Sproat and Lococo JJ.
BETWEEN:
daniela maria carrubba-Gomes
Applicant (Respondent in Appeal)
– and –
victor gomes
Respondent (Appellant)
Shelly Kaira, for the Applicant (Respondent in Appeal)
Aaron Franks and Rhea Kamin, for the Respondent (Appellant)
HEARD at Toronto: October 8, 2025
REASONS FOR JUDGMENT
R. A. Lococo J.
I. Introduction
1The appellant Victor Gomes (“Victor”) appeals with leave the temporary order of Justice James F. Diamond of the Superior Court of Justice dated December 13, 2024 (the “Temporary Order”), with reasons in his endorsement released on that date (the “Reasons”).
2The Temporary Order requires Victor to pay spousal support of $45,000 per month to the respondent in appeal Daniela Maria Carrubba-Gomes (“Daniela”), pending final disposition of their family litigation.
3Victor submits that in determining the amount of interim spousal support payable, the motion judge erred by failing to consider, analyze and apply the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, July 2008) (the “SSAGs”). Victor asks the court to set aside the interim spousal support order and replace it with an interim order to pay a lesser amount of spousal support. Daniela disputes that the motion judge erred in his determination of interim spousal support and asks that the appeal be dismissed.
4For the reasons below, I would dismiss the appeal.
II. Background
5The parties were married in 2003. They have two sons. The elder son is over 18 years old and attends university. He resides away from home during the school year and with his parents over the summer. The younger son is in high school and resides with his parents in a shared parenting arrangement.
6There is no dispute that since early in the parties’ marriage, Daniela has been a stay-at-home mother, while Victor has provided for the family financially.
7The parties are separated but differ about the date of separation (December 2017 according to Victor, August 2019 according to Daniela). Therefore, the marriage lasted between 14 and 16 years. After separation, the parties have continued to reside (separate and apart) in the matrimonial home in Toronto.
8In February 2023, Daniela brought a divorce application. Among other things, she claims spousal support and child support from Victor.
9As set out in a consent temporary order dated October 23, 2024, the court ordered that (i) the matrimonial home shall be listed for sale, and (ii) until the sale transaction is completed, on a without prejudice basis, Victor shall continue to pay the carrying costs of the matrimonial home.
III. Decision under appeal
10By Notice of Motion dated November 8, 2024, Daniela sought interim spousal support and interim child support from Victor. The motion was heard on December 12, 2024. The following day, the motion judge released the Reasons, explaining his decision. At the time the interim support motion was heard and decided, the parties continued to reside in the matrimonial home.
11As set out in the Reasons, at p. 1, Victor does not take issue with Daniela’s “entitlement to claim support, both on a compensatory and non-compensatory basis.” At pp. 1-2, the motion judge identified the issues to be determined as (a) the amount of Victor’s income for support purpose, (b) whether any income should be imputed to Daniela, and (c) the amount of child support and spousal support to be payable to Daniela.
12As set out in the Temporary Order, the motion judge ordered that:
a. On a temporary and without prejudice basis, Victor’s income for support purposes shall be $1,729,281, being “the average of [his] 2019 income of $1,542,237 and his 2021 income of $1,916,325 based on [his] income report prepared by [his] certified business valuator”: Temporary Order, at para. 1;
b. No income shall be imputed to Daniela, that issue being left to be determined by the trial judge on a final basis: at para. 2;
c. Commencing December 12, 2024, Victor shall pay Daniela:
i. $15,000 per month in interim child support: at para. 3(a); and
ii. $45,000 per month in interim spousal support: at para. 3(b); and
d. The interim child support and interim spousal support in the Temporary Order are temporary, without prejudice to the parties’ joint rights to revisit these amounts at trial for the purpose of retroactive and/or ongoing readjustments and without prejudice to Daniela’s right to bring a motion, if necessary, for interim disbursements over and above the child support and spousal support: at para. 4.
13In the Reasons, at pp. 4-5, the motion judge explained his determination of the amount of interim child support and interim spousal support, as follows:
Issue #3: What amount of child support and spousal support, if any, ought to be ordered?
To begin, as the respondent’s annual income for the purpose of this interim motion exceeds $350,000.00, the formulas for setting the amount of spousal support in the Spousal Support Advisory Guidelines are no longer applicable or presumptive. The Court must set out to conduct a case-specific analysis, and as my colleague Justice Shore found in Hopkinson v. Hopkinson 2023 ONSC 1583, the needs and mean tests are of greater significance when conducting that analysis.
As I have found that imputing income to the applicant would not be appropriate at this interim stage, the Court turns its attention to the proposed budget prepared by the applicant to assess her needs in light of the respondent’s means. I am mindful of the Court of Appeal for Ontario’s finding Fielding v. Fielding 2015 ONCA 901 that when dealing with high income earners, the Court should typically avoid setting spousal support on the basis of a 50/50 distribution of Net Disposal Income.
I am mindful of my obligation to consider all the factors listed in section 15.2(4) of the Divorce Act and the objectives in section 15.2(6) of the Divorce Act. This was indeed a long-term marriage, and the applicant was financially dependent on the respondent and his corporations.
On an interim motion for support, the Court does not examine all expenses with a finetoothed comb – it rather strives to fashion a support order that maintains a claimant’s reasonable standard of living pending further examination at trial.
I have reviewed the expense budget prepared by the applicant. The applicant further relies upon a chart set out at paragraph 16 of the respondent’s affidavit where he confirms that the applicant was paying at least $18,000.00 per month on her own personal expenses. The applicant submits that the $18,000.00 figure did not include household expenses, and according to her budget, her total monthly expenses would be approximately $38,000.00. Grossing up that figure, the applicant is requesting spousal support of approximately $51,000.00, in addition to approximately $17,000.00 in child support.
The $18,000.00 figure was included by the respondent for the purpose of seeking to convince this Court that the monthly expenses incurred by the applicant (using the line of credit) were reckless, irresponsible and excessive. The respondent was certainly not conceding that the $18,000.00 in monthly expenses was reasonable.
In reviewing the applicant’s sworn financial statements, I agree with the respondent that the applicant’s monthly expenses are, in part, likely inflated. In particular, the household expenses appear to be excessive as they relate to transportation, personal/health and holidays. While the trial judge will be in the best position to assess the reasonableness and reliability of the applicant’s monthly expenses, in reviewing the evidentiary record before this Court, I find that that the total monthly expenses proposed by the applicant likely fails to accurately reflect the lifestyle she enjoyed during the marriage. In my view, her actually monthly budget (personal and household expenses) is likely closer to $30,000.00.
Accordingly, in my view an appropriate and reasonable result on this interim motion is to award the applicant monthly child support in the amount of $15,000.00 together with monthly spousal support in the amount of $45,000.00 (grossed up to account of the resulting tax obligations), which total a monthly payment of $60,000.00.
These amounts are being ordered without prejudice to the parties’ joint rights to revisit these amounts at trial for the purpose of retroactive and/or ongoing and future readjustments.
These amounts are also being ordered without prejudice to the applicant’s rights to bring a motion, if necessary, for interim disbursements over and above the child support and spousal support.
IV. Appeal
14Victor sought leave from the Divisional Court to appeal the Temporary Order and to stay its effect pending appeal. By endorsement dated April 11, 2025, reported at 2025 ONSC 2035 (the “Leave Endorsement”), at para. 1, leave to appeal was granted “on the sole issue of the motion judge’s failure to consider, analyze, and apply the [SSAGs] in determining the appropriate amount of temporary spousal support.” At para. 2, the Leave Endorsement went on to “clarify” that “leave is not granted on the issues of misapprehension of evidence, findings of fact, failure to impute income to [Daniela], and determination of [Victor’s] income.” At para. 4, the leave panel also declined to stay the Temporary Order pending appeal.
15By Notice of Appeal dated July 23, 2025, Victor appeals the Temporary Order. He asks the court to set aside para. 3(b) of the Temporary Order, requiring him to pay interim spousal support of $45,000 per month, and replace it with an interim order to pay spousal support of $23,000 per month.
A. Jurisdiction and standard of review
16The Divisional Court has jurisdiction to hear this appeal, as set out in the Leave Endorsement: see Court of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b).
17Appellate standards of review apply, as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19, 26-37. The standard of review is correctness for questions of law, including legal principles extricable from questions of mixed fact and law. The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law (where there is no extricable question of law), including the application of correct legal principles to the facts. Victor does not have leave to appeal relating to questions of fact: Leave Endorsement, at para. 2.
18As the Court of Appeal for Ontario recently stated in R.L. v. M.F., 2025 ONCA 595, at para. 21 (quoting Johanson v. Hinde, 2016 ONCA 430, at para. 1):
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.
19Appeal courts owe significant deference to a first instance decision on support, given its fact-based and discretionary nature: Hickey v. Hickey, 1999 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.
20Support 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.
21Appellate 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 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.), at pp. 413-414.
B. Victor’s position
22As set out in the Leave Endorsement, the only issue to be determined in this appeal is whether the motion judge made reversible errors by failing to consider, analyze and apply the SSAGs in determining the appropriate amount of interim spousal support.
23Victor submits that the motion judge erred in law, reviewable on a standard of correctness, by failing to consider, analyze and apply the SSAGs, contrary to the legal principles set out in the jurisprudence relating to determination of spousal support. In the alternative, he argues that the motion judge made palpable and overriding errors in the application of those legal principles to the facts in this case.
24Victor notes that the only reference to the SSAGs in the Reasons is in the first paragraph of the motion judge’s analysis relating to the amount of support that should be ordered, at p. 4:
To begin, as the respondent’s annual income for the purpose of this interim motion exceeds $350,000.00, the formulas for setting the amount of spousal support in the Spousal Support Advisory Guidelines are no longer applicable or presumptive. [Emphasis added.]
25Victor submits that there is a fundamental error in this introductory sentence that permeates the Reasons. Victor does not challenge the motion judge’s statement that the formulas in the SSAGs for determining spousal support are no longer “presumptive” if the payor’s income is over $350,000: see Spousal Support Advisory Guidelines: Revised User’s Guide (Ottawa: Department of Justice Canada, April 2016) (the “User Guide”), at p. 56. However, Victor argues that the motion judge erred in stating that the SSAGs formulas are no longer “applicable” in those circumstances.
26The 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.
27As 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”).
28Unlike 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.
29As 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."
30Victor submits that in determining the quantum of spousal support, the motion judge erred in law since, contrary to binding jurisprudence, he neither applied the SSAGs nor explained his departure from those provisions. Victor says that even though his annual income was above the income “ceiling” of $350,000 set out in the SSAGs, the SSAGs have been routinely considered in high-income cases, including in recently decided Rathee.
31Victor 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.]
32Consistent with that statement, in Driscoll v. Driscoll, 2009 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. In his factum, Victor faults the motion judge for failing to cite Driscoll or reference all eight of the listed factors.
33Victor also submits that instead of considering and applying the SSAGs, the motion judge incorrectly focused exclusively on Daniela’s budget. As a result, Victor says that Daniela was left with 56.6 percent of the parties’ net disposable income (“NDI”). Victor argues that this result was not consistent with the motion judge’s statement in the Reasons that he was mindful of the Court of Appeal’s finding in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 50, that “when dealing with high income earners, the Court should typically avoid setting spousal support on the basis of a 50/50 distribution of Net Disposal Income”: Reasons, at p. 4.
34Victor says that the motion judge correctly stated the principle set out in Fielding but erred in applying it in this case. He submits that the motion judge, not having considered the SSAGs, was not aware he was awarding Daniela over 50 percent the parties’ NDI – when both children were in a shared parenting situation, with one child was living away at school and Victor paying the s. 7 expenses.
35In the calculation of Daniela’s share of NDI as being over 56 percent, Victor takes into account the fact that under the Temporary Order, Daniela receives $15,000 per month in interim child support, in addition to $45,000 per month in interim spousal support. For this purpose, Victor accepts the finding that Daniela’s actual “monthly budget (personal and household expenses) is likely closer to $30,000.00.” However, Victor submits that the motion judge erred when he “grossed up” that amount to account for “resulting tax obligations”, without taking into account the fact that Daniela was also receiving $15,000 per month in (tax free) child support to cover her expenses. Victor says that it is particularly perverse that Daniela be left with over 56 percent of the parties’ NDI when Victor was solely responsible for paying s. 7 expenses, including the post-secondary school expenses of the elder son.
36In making that submission, Victor does not dispute that the motion judge’s award of $45,000 in monthly spousal support falls within the range (albeit the upper end) of spousal support that would be awarded if the income-sharing formula in SSAGs is applied to Victor’s income of $1,729,281 as found by the motion judge. As stated in Victor’s factum, the SSAGs formula range (on Victor’s calculations) suggests spousal support of $1,950 to $46,426 per month. However, Victor submits that nature of the recipient’s entitlement to spousal support (and the facts of the case) are relevant to determine the appropriate “income input” to use (within the range from $350,000 to the payor’s actual income) in calculating the amount spousal support payable: see Hopkinson v. Hopkinson, 2023 ONSC 1583, at paras. 48-50; Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at paras. 107, 115-120. Victor argues that had the motion judge conducted the required “individualized fact specific analysis” to determine the appropriate income input in this case, the resulting spousal support would have left Daniela with less than 50 percent of the parties’ NDI.
37Victor asks the court to set aside the interim spousal support order of $45,000 per month and order instead that Victor pay interim spousal support of $23,000 per month. By his calculation, that would leave Daniela with 42 percent of the NDI. In support of that position, Victor provides on appeal DivorceMate spousal support (“With Child Support”) calculations based on Victor’s income of $1,729,281 and monthly child support of $15,000, both as found by the motion judge. The calculations also take into account s. 7 expenses of $3,833 per month payable by Victor.
38Those calculations were not before the motion judge. For the interim support motion, the parties provided the motion judge with DivorceMate spousal support calculations based on divergent amounts for Victor’s annual income ($1,184,772 according to Victor, $1,916,325 according to Daniela). Unlike the spousal support calculations Victor provided on appeal, the calculations that he provided to the motion judge did not take into account his payment of s. 7 expenses. However, the financial statements that Daniela provided to the motion judge indicated that such expenses were paid by Victor.
C. Daniela’s position
39Daniela disputes that Victor has identified any errors on questions of law that, reviewed on a correctness standard, would justify setting aside the amount of interim spousal support set out in the Temporary Order. She says that at most, Victor is alleging errors on questions of mixed fact and law related to the weight to be assigned to the evidence. Questions of mixed fact and law are reviewed on the deferential standard of palpable and overriding error, absent extricable questions of law, which are reviewable on a correctness standard: Housen, at paras. 26-37. Daniela argues that no such errors have been identified in this case.
40Daniela also argues that Victor essentially asks the court to reweigh findings of fact and exercise its discretion differently than the motion judge to reduce the amount of spousal support. She says that this intervention would be contrary to the role of an appeal court, particularly with respect to interim orders. She also submits that it would also be contrary to the Leave Endorsement, which specifies that leave is not granted on the issues of “findings of fact” or “misapprehension of evidence”.
41Daniela submits that the motion judge did not err by failing to consider and apply the SSAGs in making an order for interim spousal support. Daniela says that after making explicit reference to the SSAGs, the motion judge went on to perform a case-specific analysis and considered each spouse’s means and needs, as required by s. 15.2 of the Divorce Act and applicable caselaw. The motion judge also considered the relevant principles regarding interim support orders, which are intended to serve as a reasonably acceptable solution until trial. At that time, the trial judge will be in a position to determine the amount of spousal support on a final basis, on a full record, and make any retroactive adjustment as may be required to the amount of support already paid.
42Daniela also notes that the amount of interim spousal support that the motion judge ordered was well below her alternative requests before the motion judge but was within the SSAG ranges on Victor’s own calculations. Daniela submits that the motion judge’s determination is entitled to significant deference on appeal.
V. Analysis and conclusion
43As explained below, I conclude that the motion judge did not make reversible errors by failing to consider, analyze and apply the SSAGs in determining the appropriate amount of spousal support.
44Contrary to Victor’s submission, I do not agree that the motion judge made a fundamental error in stating that the formulas for setting the amount of spousal support in the SSAGs are no longer “applicable or presumptive” (emphasis added) if the payor’s annual income exceeds $350,000. The context of that statement is important, being in this case, an interim determination of the amount of spousal support payable pending final determination (and if necessary, adjustment) at trial, on a full record.
45As previously noted, a support order should not be overturned on appeal unless the reasons disclose an error in principle or a significant misapprehension of the evidence, or the award is clearly wrong: Hickey, at para. 11; Holman, at para. 22. In addition, an appellate court should not interfere with an interim support order unless the order is “clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding”: Sypher, at pp. 413-414.
46Considering the Temporary Order and the Reasons as a whole, I see no error that meets the required threshold to set aside the interim order to pay spousal support set out in para. 3(b) of the Temporary Order, as explained further below.
A. The Law
i. Spousal support legislation
47The 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 25 (SCC), [1992] 3 S.C.R. 813, at pp. 849-850; R.L. v. M.F., at para. 39.
48Consistent 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.
49In 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
50In 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.
51Victor 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.
52As 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.”
53The 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.]
54There 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.
55In 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].
56In 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
57A 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.
58In 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]:
On applications for interim support the [recipient’s] needs and the [payor’s] ability to pay assume greater significance;
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;
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;
The courts should not unduly emphasize any one of the statutory considerations above others;
On interim applications the need to achieve economic self-sufficiency is often of less significance;
Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
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.
B. Application to this case
i. The motion judge did not err in the application of the Driscoll factors
59Victor faults the motion judge’s Reasons for failing to cite Driscoll or reference all eight factors set out in that case. To the contrary, in providing reasons, the court has no obligation to make specific reference to every case that may be relevant to the matters in issue. That is especially true in the context of an interim proceeding with procedural restrictions on the material that may be placed before the decision maker and a premium placed on an expeditious decision to address the parties’ personal circumstances.
60In any case, I see no inconsistency between the motion judge’s analysis and the approach to addressing interim support motion indicated in Driscoll and other related cases. For example,
a. Consistent with the first factor in Driscoll, the motion judge noted the significance of the “needs and means tests” when conducting the required case-specific analysis and referred to the “factors” and “objectives” set out in ss. 15.2(4) and (6) of the Divorce Act: Reasons, at p. 4, first and third paragraphs. Other caselaw has similarly indicated that interim spousal support is to be based primarily on the motion judge’s assessment of the parties means and needs: Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, at para. 65(e); E.D. v. D.D., 2012 ONSC 6689, at para. 24(5); see also Hopkinson, at para. 57.
b. The motion justice recognized the “rough justice” nature of the exercise (referred to in the third factor in Driscoll) and the temporary nature of an interim order, noting that a “fine-toothed” examination of Daniela’s expenses was not required in light of the nature of an interim order “to fashion a support order that maintains a claimant’s reasonable standard of living pending further examination at trial”; Reasons, at p. 4, fourth paragraph.
c. When reviewing Daniela’s household expenses set out in her financial statements, the motion judge found that the expenses she proposed “likely fails to accurately reflect the lifestyle she enjoyed during the marriage”, recognizing the substance of the second factor in Driscoll relating to the maintaining the support recipient’s “standard of living”: Reasons, p. 4, last paragraph.
d. Given that there is no dispute about Daniela’s entitlement to spousal support, on both an interim and final basis, certain of the other Driscoll factors (notably the seventh and eighth factors) have no application in this case.
ii. The motion judge did not err by focusing on Daniela’s budget to the exclusion of the SSAGs
61In his submissions relating to the Driscoll factors, Victor focuses on the sixth factor, which states that interim support should be ordered “within the range suggested by the SSAGs unless exceptional circumstances”. He challenges the motion judge’s failure to recognize the role of the SSAGs formulas in calculating the amount of interim spousal supports, including when the payor’s income is over $350,000. He submits that it was fundamental error for the motion judge to state that the SSAGs formulas are “no longer applicable or presumptive” (emphasis added) when the payor’s income is over $350,00 (emphasis added). He also argues that the motion judge erred in focusing on Daniela’s proposed budget, rather than considering and applying the SSAGs.
62I agree with Victor that it would have been of assistance had the motion judge been more fulsome in his explanation relating to the application of the SSAGs. However, I do not agree that he made an error of law (or palpable and overring error in applying the law to the facts) in the circumstances of this case. A significant factor in reaching that conclusion is the temporary nature of the interim spousal support order, which by its terms is subject to reconsideration and, if necessary, retroactive readjustment on a full record at trial.
63As noted above, previous caselaw (and the SSAGs themselves) have used varying language in describing the SSAGs’ role in determining spousal support when the payor’s income exceeds the “ceiling” of $350,000. Beyond that income level, the SSAGs formulas give way to “discretion” or constitute an “exception” to the application of the SSAGs formulas: SSAGs, s. 11. The SSAGs formulas are “tool only” and “cannot be applied automatically in every case”: see Politis, at para. 29; R.L. v. M.F., at para. 54.
64After making specific reference to the SSAGs in the opening sentence of his analysis, the motion judge went on to state that he was required “to conduct a case-specific analysis”, indicating that “the needs and mean tests are of greater significance” when doing so. As noted above, other cases have emphasized the importance of “needs and means” analysis in this context, as the motion judge did in this case: see Liddell-MacInnis, at para. 65(e); E.D. v. D.D., at para. 24(5). As part of that analysis, the motion judge considered the proposed expenses in Daniela’s budget, as other judges have done in similar circumstances: see Hopkinson, at paras. 57-64.
65The motion judge also recognized the temporary nature of an interim support order, noting that the court “strives to fashion a support order that maintains a claimant’s reasonable standard of living pending further examination at trial”: Reasons, at p. 4, fourth paragraph. At that time, the trial judge, on a full record and without the procedural restrictions that apply to materials for interim motions, will be in a position to make any adjustments to spousal support that may be required. As MacPherson J.A. recently noted in K.K. v. M.M., 2025 ONCA 446, at para. 57 (in a dissenting opinion, but not on this point), “[t]rial judges routinely revisit support awarded at interim steps and make adjustments with retroactive effect”.
iii. The motion judge did not err by allocating a disproportionate share of the parties’ net disposable income (NDI) to Daniela
66In his Reasons, at p. 4, second paragraph, the motion judge stated that he was “mindful” of the Court of Appeal’s finding in its 2015 decision in Fielding that “when dealing with high income earners, the Court should typically avoid setting spousal support on the basis of a 50/50 distribution of Net Disposal Income.”
67Victor submits that the motion judge correctly stated that principle but erred in applying it by (on Victor’s calculation) making a spousal support order that awarded Daniela 56.6 percent of the parties’ NDI. Victor accepts the motion judge’s findings of fact relating to Daniela’s monthly expenses (as the Leave Endorsement requires) but challenges his calculation of spousal support based on the motion judge’s alleged failure to take into account (i) the tax-free nature of the interim child support award, and (ii) the fact that Victor is solely responsible for paying s. 7 expenses, including the post-secondary expenses of the elder son. On appeal, Victor provides alternative calculations to support his submission that the motion judge should have ordered a lower amount of interim spousal support.
68I see no error of law or palpable and overriding error in the application of the law to the facts arising an award of a disproportionate share of the parties’ NDI to Daniela.
69Victor relies on the following passage from Fielding, at para. 50, to support his submission:
I would not interfere with the trial judge's determination of spousal support. Equalization of income (or "NDI") has never been the basis upon which spousal support is determined in Canada. Moreover, the wife's income, including support, investment income and disability payments, is more than enough to support her reasonable needs.
70I do not read Fielding as promulgating an immutable direction that a spousal support order should not exceed 50 percent of the parties’ NDI. Rather, Fielding indicated that spousal support should be determined on a means and needs basis (the approach taken by the motion judge in this case), rather than on the basis of equalization of NDI.
71As Daniela notes in her factum, there have been awards of spousal support in other cases that resulted in the payor receiving more the 50 percent of the parties’ NDI, taking into account the parties’ circumstances: see Andrews v. Andrews (1999), 1999 3781 (ON CA), 45 O.R. (3d) 577 (C.A.), at para. 34 [60 percent of NDI to recipient]; Laurain v. Clarke, 2013 ONSC 726, 34 R.F.L. (7th) 187, at para. 52 [55.6 percent of NDI to recipient], citing Andrews; and R.N. v. C.S., 2020 ONCJ 263, at paras. 298-299 [65 percent of NDI to recipient].
72As well, in the Court of Appeal’s recent decision in R.L. v. M.F., at paras. 45-49, the court declined to interfere with a final support order that resulted in the recipient receiving 56 percent of the parties’ NDI. In that case, the court noted that “NDI is not a target per se but an important way to test the reasonableness of different outcomes”: at para. 47. The court also confirmed that “[t]here is no NDI upper limit of a support recipient”, at para. 48, citing Andrews.
73In reaching the conclusion that the motion judge did not err in setting the amount of spousal support, I also took into account that fact on Victor’s own calculations, that the monthly spousal award of $45,000 fell within the range (albeit the upper end) of spousal support that would be awarded if the income-sharing formula in SSAGs is applied to Victor’s income of $1,729,281. To the extent that hypothetical SSAGs calculations may provide a test of the reasonableness of the spousal support award in a high-income case, the fact that the interim amount the motion judge awarded fell within the range indicated in SSAGs tends to favour Daniela’s position that the spousal support order should not be interfered with on appeal.
74I also see no merit in Victor’s challenge to the amount of spousal supported award based on the motion judge’s alleged failure to take into account the tax-free nature of the child support award and the fact that Victor was solely responsible for paying s. 7 expenses. I agree with Daniela that the alleged error related to, at most, a question of mixed fact and law relating to the application of the law to the facts, as found by the motion judge. I see no palpable and overriding error, particularly in the context of an interim spousal support order that is subject to reconsideration and adjustment (if necessary) by the trial judge.
75With respect to s. 7 expenses, I also note that unlike the calculations Victor placed before the court on appeal, the calculations that Victor provided to the motion judge did not take into account Victor’s payment of s. 7 expenses. In those circumstances, I give little weight to that aspect of the calculations he provided on appeal.
VI. Disposition
76For the above reasons, I would dismiss the appeal and order Victor to pay to Daniela (i) costs of the appeal in the agreed amount of $17,500, and (ii) costs of the leave to appeal motion in the fixed amount of $5,000.
___________________________ Lococo J.
I agree: ___________________________ Sachs J.
I agree: ___________________________ Sproat J.
Date: November 19, 2025
CITATION: Carrubba-Gomes v. Gomes, 2025 ONSC 6377
DIVISIONAL COURT FILE NO.: 019/25
DATE: 20251119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Sproat and Lococo JJ.
BETWEEN:
daniela maria carrubba-Gomes
Applicant (Respondent in Appeal)
– and –
Victor gomes
Respondent (Appellant)
REASONS FOR JUDGMENT
R. A. LOCOCO J.
Date: November 19, 2025