Spousal Support and Family Law (II): Overarching Principle and the Advisory Guidelines

July 24, 2014

By Jeff Jiehui Li*

The “Overarching Principle”

Having reviewed different factors and objectives the court needs to consider in ordering spousal support, one may ask: what is spousal support really for? In one word, spousal support is best viewed as a means for equitable sharing the economic consequences of the marriage (or cohabitation) and its breakdown. In Canadian Family Law, Payne name this as the “overarching principle” of spousal support, as embodied in such cases of Moge v. Moge and Bracklow v. Bracklow.  This principle suggests “equalization” of the economic consequences of the marriage (or cohabitation) and its breakdown, and not equalization of the parties’ net disposable income.

Spousal support is thus one measure to achieve the equitable sharing of the consequences of an intimate relationship and its breakdown, along with equalization of net family properties (for married couples only) and child support, where applicable. In determining the quantum and duration of the spousal support, the court will have to look at the parties’ conditions, roles and other circumstances at the time of the beginning of the relationship, during the relationship, at the end of the relationship, at the time of the application, and in the future.

The Spousal Support Advisory Guidelines

One may imagine now the task of determining quantum and duration of spousal support is not an easy one. With the introduction of the Spousal Support Advisory Guidelines (“SSAG” or the “Guidelines”), this process is simplified a lot. Commissioned by the Department of Justice, Canada, Professor Carol Rogerson and Professor Rollie Thompson prepared the Guidelines with years of research and consultation, and the final version was released in 2008. Since its release, judges, lawyers and litigants have found it a very useful tool in formulating and negotiating the quantum and duration of spousal support.

A most important aspect of the Guidelines is that the calculation of quantum of spousal support is based on income sharing, instead of the traditional budgetary analysis. There are a number of formulas used to calculate spousal support, notably the Without Child and With Child formulas. Under the With Child Formula, there are a few variations, such as share and split custody variations. This article will address the basic with child formula only.

The Without Child Formula

In a nutshell, in the Without Child Support Formula, the quantum of spousal support ranges from 1.5 to 2 percent of the difference between the spouses’ gross incomes for each year of the cohabitation, up to a maximum of 50%. The duration of the support will range from 0.5 to 1 year of support for each year of cohabitation. In the following two situations, the support will be indefinite: (a) the relationship is twenty years or longer in duration; and (b) if the relationship has lasted 5 years or longer, when years of the relationship and age of the support recipient (at separation) added together total sixty-five or more. By indefinite, it simply means that the duration of the support is not specified, and not that the support obligation is permanent.

The With Child Formula

In the basic With Child Support Formula, which is applicable in the typical sole custody cases, the parties’ Individual Net Disposable Income (INDI) will need to be determined first. Simply put, the support payor’s INDI is the Guidelines Income (income determined in accordance with the Child Support Guidelines) minus child support minus tax and deductions, and the Recipient’s INDI is the Guidelines Income minus notional child support minus taxes and deductions plus government benefits and credits. The amount of the spousal support should enable the recipient retain 40-46% of the combined INDIs of the parties.

For the duration of support, the lower end is the longer of either one-half year of support for each year of relationship or until the date the youngest child starts attending school full time. The higher end is the longer of one year of support for each year of relationship or until last child completes high school.

Calculation under the Spousal Support Advisory Guidelines requires commercial software, as certain factors like income tax ratios are hard to determine. However, the calculation is recently made available at mysupportcalculator.ca. When one uses this tool, it must not be forgotten that the figures generated are for reference only. Whether one can get spousal support, and the exact amount and duration of the support will only be finalized after analyzing all relevant factors in determining spousal support.

The Limitations of the Guidelines

Unlike the Child Support Guidelines, the Spousal Support Advisory Guidelines are not legislated. The SSAG is therefore informal, voluntary and advisory in nature. However, it does provide a good starting point for negotiation and decisions, and has the effect of creating consistency and simplifying the determination of the quantum and duration of the spousal support.

Since the SSAG is not law, its acceptance in the court varies. However, most courts view that the Guidelines provide useful assistance for them to determine the quantum and duration of spousal support, and in some cases justification will even be required if parties’ positions deviate from the range suggested by the Guidelines. In practice, many cases are decided solely based on the SSAG calculation.

Despite this, the Guidelines have significant limitations. First and foremost, the Guidelines do not deal with the entitlement to spousal support, which needs to be established first in order for the Guidelines to apply. In other words, the Guidelines are not substitute for the analysis of the facts of a specific case, and the legal analysis of the factors and objectives prescribed by the statutes and relevant case law. Even when the Guidelines are applicable, the final determination of the quantum and duration of the support should be based on the consideration of relevant factors and objectives spelled out in law on the specific facts of each case.

(To be continued) 

 

*Jeff J. Li is the principal lawyer at Jeff J. Li Professional Corporation. The law office of Jeff Li focuses on family law practice, serving individuals in the Greater Toronto Area.

Related Articles

Spousal Support and Family Law (I): Statutory Provisions and Case Law

Spousal Support and Family Law (Part III): Spousal Support and Separation Agreement

Jeff Li’s Child and Spousal Supports Blog 

Family Law Services

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