The Divorce Act sets out the factors that a judge considers when ordering one ex-partner to pay spousal support (also knows as "partner support" or "spousal maintenance") to the other ex-partner. The factors in provincial family law legislation that applies to unmarried couples, such as Alberta's Family Law Act, often mirror the Divorce Act.
Before spousal support is ordered, one ex-partner must show that they are entitled to spousal support. Entitlement is a big topic that we might cover in another issue. You can find basic information on entitlement in CPLEA's Financial Support booklet.
If one ex-partner is entitled to spousal support, the next question is how much should they receive (the "quantum") and for how long (the "duration"). Lawyers, judges and ex-partners often use the Spousal Support Advisory Guidelines (the "SSAGs") to help determine the quantum and duration of spousal support.
Two law professors, Carol Rogerson and Rollie Thompson, developed the SSAGs based on how courts were practically applying the Divorce Act factors. The Federal Department of Justice published the SSAGs. The SSAGs include a set of calculations used to determine quantum and duration of spousal support as well as a User Guide to provide practical assistance in using the calculations. The SSAGs provide consistency and predictability to spousal support awards. They focus on income sharing rather than analyzing each partner's budgets. The Federal Department of Justice released a draft proposal in 2005 before releasing a "final" version in 2008. The User Guide was updated in 2010 and 2016.
Unlike the Federal Child Support Guidelines, the SSAGs are truly guidelines. They are not law. They are not part of any piece of legislation or regulation. So what are they? Does a judge need to follow them?
When making a decision, a judge must follow the applicable legislation and regulations. Judges must also consider the decisions that other judges have made, particularly the decisions of judges at higher levels of court. This is what we call "precedent" or "caselaw". Judges are also welcome to consider other helpful resources, such as textbooks written by respected legal academics. However, these other resources should not override the judge's discretion and application of the legislation and caselaw.
From early on, appeal courts across Canada referred to the SSAGs as a "useful tool", just like a well-researched textbook. However, there was inconsistency on what weight...