Spousal Support Advisory Guidelines
The Family Law Centre of Ricketts, Harris LLP1
An SSAG Primer
On Thursday, January 27th, 2005,
Professors Carol Rogerson and Rollie Thompson released their
Spousal Support Project report titled: “Spousal
Support Advisory Guidelines: A Draft Proposal”.
They’re asking for feedback and if you have any comment
(plaudits or gripes) they’re reachable at Spousal Support
Project, P.O. Box 2310, Station D, Ottawa, Ontario, K1P 5W5.
There’s a great Executive
Summary and an Introduction
which are well worth reading. But if you don’t do anything
else, take a look at the Table
of Contents so you’ll know what specific questions they’ve
This Commentary will deal with matters under these headings:
What are the
They’re 2 formulas (without
designed to produce a figure for spousal
support in normal situations for support payors in situations
where there is and where there isn’t child support. The
report goes into detail about the without child support formula in
and the with child support in
They’re “advisory” – not legislated or mandatory. This
means the SSAG are set out for people to look at and decide to
adopt or not as they may jointly wish. Obviously the
thinking is that once there’s a formula which is accepted as
being reasonable unless there’s some reason for an exception,
more and more people will just look at the formula.
The authors take pains to point out that they’re not suggesting
something new of different from what we’re already doing in
Canada, and they’re not replacing the existing legislation and
case law, but that they’re trying to come up with a set of
formulas that assist lawyers, judges, and clients in arriving at a
fairly uniform result for spousal support without having to go
through expensive litigation. They recognize that this
won’t work for everyone, but believe that it will work for lots
of divorcing couples.
Because this is a Federal initiative the suggestions really only
apply to married people who are divorcing. But it’s pretty
obvious that once these advisory guidelines begin to be applied
for married couples the same lawyer and judges will be looking to
them for unmarried couples separating in the same situation.
Go through he report and look at the proposals carefully. Then
ask yourself how they’d apply to various closed cases in your
office. How different would the results be under the
appropriate formula from the result negotiated between two lawyers
or as determined by the court in any particular file? And if
there would be a difference, ask yourself which of the 2 results
is more aligned with your sense of what’s right – as opposed
to what was the best deal for your client? There’s no
suggestion in the report that parties can’t continue to proceed
as we now do without the SSAG. But there is the clear
suggestion that using the SSAG will bring about greater uniformity
of spousal support results, with the ability to reasonably predict
the general end-result subject to certain limited adjustments.
Sharing as the Basic Structure
We’re done with budgets if we use the SSAG. At least they
won’t play a primary role any more because the key consideration
will be how to share the income of the parties. If you
don’t like that as a basis approach you won’t like the SSAG.
But it simplifies matters.
Firstly it’s fundamental to realize that “income sharing”
doesn’t mean “equal sharing”. And secondly, it’s
important to recognize, as does the report, that the formulas set
out are intended to be starting points and that there will be
scope for variations, exceptions, and adjustments so that the
formula doesn’t become a straightjacket.
Without Child Support Formula Approach
This formula embraces the “merger
principle which is that the longer the marriage
lasts the economic and non-economic lives of the parties become
more deeply merged with each spouse acting and making a variety of
decisions based upon, or taking into consideration, the situation
of the other spouse. The authors state that the
“merger over time” concept captures both the compensatory and
non-compensatory spousal support objectives set out in the Moge
and Bracklow cases.
The Without Child Support Formula therefore is built around 2 key
The box set out below is how the report summarizes the formula which is intended as the starting point after which one looks at such things as where in the range any particular case fits, what restructuring should be considered (higher payments for a shorter period of time, lump sum adjustments, etc.) and what exceptions apply. The formula is advisory only and should be the first step in dealing with the issue of spousal support if there isn’t child support being paid.
When you’re in a situation where the spousal support is being
calculated where there aren’t any children, then you use the
gross income of the parties and work with the gross income
difference. (1.5% - 2% of the gross income difference for
each year of cohabitation up to 25 years. The range of
support remains fixed for marriages 25 years or longer at 37.5% -
50% of the income difference. There are examples below.)
This formula also sets out a calculation to fix the duration of the
support. (.5 – 1 times the number of years of marriage but
indefinite for marriages of 20 years or longer, or if the marriage
and age of the recipient at separation totals 65 of more.
There are examples below.)
However there report suggests that there would be factors affecting
the precise amount or duration of the ranges of support produced
by the formula. These include such things as a strong
compensatory claim, the recipient’s needs, property division,
the needs and limited ability to pay on the part of the payor
spouse, and self-sufficiency incentives.
And the report also sets out various
methods of “restructuring”
so that you can move around the amounts and duration of support to
increase one and decrease the other. Most lawyers do this
one way or the other in drafting separation agreements but the
report provides some actual examples to assist those who might not
otherwise have thought of it.
And it also deals with various “exceptions” or “categories of departures” from the ranges for amounts and duration. If looking within the suggested ranges doesn’t satisfy the particular case you’re dealing with and restructuring doesn’t lead to the “right” solution, then as a final step you’d want to see how the exceptions can assist in shaping a resolution. The report sets out several “exceptions” but comments that they anticipate the ones they didn’t set out will create more discussion than those they did.
With Child Support Formula Approach
This formula recognizes the obvious fact that spousal support in a
situation where there is child support being paid is different
from where there isn’t any child support obligation. Child
support needs to be paid as a first priority, it isn’t tax
deductible or includable, it isn’t a function of the length of
the marriage, it needs to take into consideration that both
parents – not just the support paying parent – are
contributing to the cost of raising the children, it must
recognize that most often there are forgone economic advantages
resulting from the child raising activity within the marriage.
As well, this formula needs to deal in the after-tax disposable
income of the family – not gross incomes.
The box set out below is how the report summarizes the formula which is intended as the starting point after which one looks at such things as where in the range any particular case fits, what restructuring and exceptions might apply. When there are child support obligations the amount and nature of restructuring will be less relevant but because this report deals with the spousal support piece of the overall support obligations it might well be adjusted once the child support piece has been set because of the particular circumstances of the family.
But we all know that dealing with a formula for spousal support when
there’s also chid support involved isn’t very simple.
What about when the parents are sharing the children or there’s
split custody or when the parent paying the spousal support is the
one receiving the child support?
The report deals with these questions in sections titled “Custodial Variations: Shared and Split Custody” and “A Hybrid Formula for Spousal Support Paid by the Custodial Parent”. These sections should be looked at carefully if you’re in one of these situations so that you’ll be able to develop a starting point for spousal support discussions which take your particular situation into account.
The report states quite clearly that
there’s a range above and below which formulas just don’t
work. So they suggest that if the support payor’s income
$350,000 the payment move away from the formula to judicial
discretion and that if the payor’s income is below
$20,000 no spousal support should be paid. Remember that
the floor for child support is set at $7,500 so that if a support
payor has children then child support will be paid based upon the
payor’s income between $7,500 - $20,000 and once the income
exceeds $20,000 both child and spousal support would be paid under
the formulas if there weren’t to be any adjustments because of
restructuring or exceptions considera tions.
Review, Remarriage, Second Families
This is clearly going to be an area of intense examination for people concerned with the effect of the SSASG. When can the formula be adjusted in light of changed circumstances. What about the remarriage or re-partnering of the parties (no change if it’s the payor re-partnering) or if either of the parties have a second family? Theses aren’t new questions but they are certainly vexing. The report recognizes that they are troublesome and attempts to address each of these situations. In some cases they acknowledge that there isn’t any consensus and they don’t have a suggestion. But if you have one of these situations you need to take a close look at Chapter 10.
7. Other Interesting Parts of the Report
report is fun to read. It’s full of interesting and
provocative thoughts and discussions, as well as setting out
various conclusions and the reasoning behind those conclusions. part
from discussing the various things mentioned above it goes into
other relevant topics such as dealing with Interim
and it has an interesting
setting out cases in Canada where the courts have already
applied some sort of income sharing in determining spousal
sets out “Detailed Calculations Under The Basic With Child
Support Formula” and there are lots of examples throughout the
report to show how what’s being discussed would apply in this or
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