U. Spousal Support Advisory Guidelines

Author:Julien D. Payne - Marilyn A. Payne

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1) Overview of the Guidelines
a) Introduction

In January 2005, the Department of Justice, Canada released a report entitled Spousal Support Advisory Guidelines: A Draft Proposal.522The report was written by Professor Carol Rogerson of the Faculty of Law at the University of Toronto and by Professor D Rollie Thompson of the Faculty of Law at Dalhousie University, who were retained by the Department of Justice in 2001 to prepare practical spousal support guidelines that could assist mediators, lawyers, and the courts in resolving spousal support disputes arising on divorce. In preparing the report, Professors Rogerson and Thompson engaged in a consultative process with an advisory working group of thirteen members composed of judges, lawyers, and mediators. As directors of the project, Professors Rogerson and Thompson engaged in consensus building but exercised the final decision-making authority when opinions were

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divided. A final report was published by the Department of Justice in 2008. This final report incorporates revisions made to their original report by Professors Rogerson and Thompson.523The basic structure of the Guidelines as originally envisaged remains unchanged but the language and organization of the final report seek to clarify meaning, to incorporate the three years of experience with the Guidelines, and to focus attention on issues such as entitlement, application, using the ranges, restructuring, and exceptions. The following significant revisions to the 2005 report were endorsed in the 2008 report:

1) All social assistance is excluded from income for spousal support purposes,524although the Universal Child Care Benefit and other government child benefits are included in income under the With Child Support Formula.5252) An additional formula has been recommended to address cases where child support is determined under section 3(2)(b) of the Federal Child Support Guidelines and there are no children for whom a table amount of child support is being paid.

3) The Without Child Support Formula has been modified so that the recipient of spousal support will never receive more than 50 percent of the couple’s net disposable income.5264) The Shared Custody Formula has been adjusted to always include an equal split of the couple’s net disposable income.

The following summary highlights the major proposals of Professors Rogerson and Thompson.

b) Nature of the Guidelines

The Guidelines are informal, voluntary, and advisory. They have not been legislatively endorsed and are not legally binding. The report envisages that lawyers and mediators will use the Guidelines as a principled basis for negotiation or as a test for determining the reasonableness of offers to settle derived from a budgetary analysis. The report also envisages that judges will

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use the ranges established by the prescribed formulas in the Guidelines as a check or litmus test to assess the positions of the parties at pre-trial conferences or in argument at hearings and trials, and that the formulas will assist judges in adjudication by providing a structural approach to the exercise of the judicial discretion conferred by the Divorce Act.

c) Advantages and Disadvantages of the Guidelines

The following six potential advantages of the Spousal Support Advisory Guidelines [SSAG] are identified:

  1. To provide a starting point for negotiations and decisions.

  2. To reduce conflict and to encourage settlement.

  3. To reduce the costs and improve the efficiency of the system.

  4. To avoid budgets and to simplify the process.

  5. To provide a basic structure for further judicial elaboration.

  6. To create consistency and legitimacy.

    The following five potential disadvantages of the Guidelines are identified:

  7. They are too rigid.

  8. Spousal support is too complicated.

  9. Discretion allows intuitive reasoning.

  10. Regional variations are too great.

  11. Litigation will be foreclosed.

    Given the inherent uncertainty of the present law of spousal support, Professors Rogerson and Thompson conclude that the advantages of the Guidelines far outweigh their disadvantages, especially in light of the inclusion of more than one formula in the Guidelines, the provision of ranges for the amount and duration of spousal support rights and obligations, and specified exceptions and other features of the Guidelines that balance consistency and certainty against the necessary flexibility that is permitted under the Guidelines.

d) Basic Structure and Application of the Guidelines

i) Income-Sharing Regime Deemed Consistent with Spousal Support Criteria under the Divorce Act

The most fundamental aspect of the Guidelines is that they are based on income sharing, as distinct from a budgetary analysis. Income sharing does not imply equal sharing of the combined income of the spouses. Mathematical formulas have been devised to determine the proportion of the spousal incomes to be shared. The authors of the report state that the income-sharing regime is consistent with existing legal principles and does not purport to

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change them. The report stipulates that the Guidelines do not deal with entitlement, but the authors assert that the post-Bracklow era has introduced a very expansive basis for entitlement to spousal support and "as a general matter, a significant income disparity will generate an entitlement to some support."527The report further states that the Guidelines do not empower a court to override final spousal support agreements, which continue to be governed by Miglin v Miglin.528 The Guidelines are, nevertheless, expected to play an important role in the negotiation of spousal agreements by providing a more structured framework for negotiation and some benchmarks of fairness for determining the validity and enforceability of a purportedly final agreement.529They may also be applied where the spousal support provisions of an agreement envisage a review or variation, and in circumstances where an agreement is judicially set aside.

ii) Proposed Applicability of the Guidelines

The Guidelines are intended to apply to interim as well as final orders.530Al-though they may also be applied in variation proceedings based on an increase in the recipient’s income or a decrease in the payor’s income,531the Guidelines

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are not intended to be of general application in variation proceedings. Post-separation increases in the payor’s income,532repartnering,533remarriage, and second families are left to be resolved under the evolving framework of existing law.534As Lauwers JA, of the Ontario Court of Appeal, stated in Gray v Gray, "[i]n such cases, the court must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate."535Having regard to the legislative redefinition of "marriage" in the Divorce Act to include same-sex couples, the Guidelines apply to them in the same way as to opposite-sex divorcing or divorced couples.536The Guidelines have been specifically developed for use under the Divorce Act. Their applicability to claims for spousal support under provincial or territorial legislation will depend on the extent to which such legislation endorses principles and a conceptual approach consistent with the Divorce Act.537Spousal support payments previously ordered and paid pursuant to provincial legislative authority are relevant to the application of the formulas prescribing the amount and duration of support under the Spousal Support Advisory Guidelines in subsequent divorce proceedings.538iii) Two Basic Formulas - Marriages without and with Dependent Children

The Guidelines establish two basic mathematical formulas to determine both the amount and duration of spousal support.539The first formula, which applies to marriages without dependent children, is relatively simple, being based on the duration of marital and premarital cohabitation.540As the duration of the cohabitational relationship increases, so too does the amount and duration of spousal support. A more complex formula is devised to deal with marriages with dependent children. Both formulas provide ranges for

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both the amount and duration of spousal support, rather than fixed amounts or periods.541The particularly wide ranges used in the Without Child Support Formula reflect regional variations and uncertainty in current practice, and could be refined after some period of experience under the Guidelines. For the purpose of applying both formulas, spousal income is defined in accordance with the criteria defined in the Federal Child Support Guidelines. However, the report opts to use different methods of calculating income under the two formulas. Under the Without Child Support Formula, gross income is used, whereas the With Child Support Formula relies upon net income calculations. Both formulas generate a gross amount of spousal support that remains subject to the current inclusion/deduction rules under the Income Tax Act. Severance payments and other termination payments are a form of replacement income and are therefore properly included in a party’s income for SSAG purposes.542

iv) Floors and Ceilings

The Guidelines report sets out a provisional floor and ceiling for their application. Subject to exceptional circumstances, such as where the payor is living with parents or otherwise has significantly reduced expenses, the report does not envisage that the formulas would apply to payors until their gross annual income exceeds $20,000.543

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