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

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 short, spousal support is best viewed as a means for equitably sharing the economic consequences of the marriage (or cohabitation) and its breakdown. In Canadian Family Law, Payne names 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 (which is 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

The task of determining the 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 significantly. The Guidelines generate a range for the quantum and duration of spousal support. Since its release in 2008, judges, lawyers and litigants have found it a very useful tool in formulating and negotiating the quantum and duration of spousal support.

One of the most important aspects of the Guidelines is that the calculation of the quantum of spousal support is based on income sharing, instead of the traditional budgetary analysis. There are several formulas used to calculate spousal support, notably the Without Child and the With Child formulas.

The Without Child Formula

In the basic 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 cohabitation, up to a maximum of 50%. The duration of the support will range from 0.5 to 1 year 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 the age of the support recipient (at separation) added together total sixty-five or more. By indefinite, it means that the duration of the support is not specified, and not that the support obligation is permanent.

The With Child Formula

The With Child Support Formula should be applied if one or more children live primarily with the support recipient (usually the party with lower income). Under the With Child Formula, there are a few variations, such as the share and split custody variations. This article will address the basic With Child Formula only.

In the basic With Child Formula, the parties’ Individual Net Disposable Income (INDI) will 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 payable, tax and deductions, and the Recipient’s INDI is the Guidelines Income minus the taxes payable and deductions, and plus the child support received, and government benefits and credits. The amount of spousal support should enable the recipient to retain 40-46% of the combined INDIs of the parties.

For the duration of the support, the lower end is the longer of (a) one-half of the time of the parties’ relationship or (b) the time until the youngest child starts attending school full time. The higher end is the longer of (a) the length of the parties’ relationship or (b) the time until the 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 has recently be made available at mysupportcalculator.ca. When one uses this tool, it must not be forgotten that the ranges generated are for reference only. Could one get spousal support, and what should be the actual amount and duration of the support (the location in the ranges)? These questions 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 Guidelines are 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.

Still, 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 a 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.

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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 

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