The Spousal Support Advisory Guidelines

The Spousal Support Advisory Guidelines is an academic paper released by the federal Department of Justice in July 2008. It is not a law and is not expected to become a law.

When someone is entitled to receive spousal support, the Advisory Guidelines describes several different formulas that can be used to calculate how much support should be paid and the length of time it should be paid for. While no one is required to use the Advisory Guidelines, lawyers and the courts routinely use them in making decisions about spousal support.

This section provides an introduction to the Spousal Support Advisory Guidelines. It discusses what the courts have had to say about the Advisory Guidelines and describes how its formulas work, how they can be restructured for fairness, and what exceptions exist to the formulas.

An introduction to the Spousal Support Advisory Guidelines

In 2001, the federal Department of Justice struck an advisory working group to look into the feasibility of uniform guidelines for the calculation of spousal support. The group was composed of judges, family law lawyers, law school faculty members, and social workers. The group was led by Professors Carol Rogerson and Rollie Thompson, both gifted and highly qualified academics with strong backgrounds in family law.

In January 2005, Professors Rogerson and Thompson released their first paper, Spousal Support Advisory Guidelines: A Draft Proposal, for public comment and feedback. After touring the country speaking to judges, lawyers and academics, and monitoring the case law on the draft Advisory Guidelines as it developed over several years, Rogerson and Thompson released their final paper, Spousal Support Advisory Guidelines, in July 2008.

The legal status of the advisory guidelines

The Advisory Guidelines is not a law, and people involved in family law disputes are not bound by it. As of July 2008, the Department of Justice said that it had no plans to turn the Advisory Guidelines into a law and didn't intend to do so. I've heard nothing to suggest a contrary intention since.

The Advisory Guidelines in a nutshell

The Spousal Support Advisory Guidelines is an attempt to capture how the majority of Canadian court decisions on spousal support have determined how much support should be paid, and how long support should be paid for, in mathematical formulas. It is not intended to change the law on spousal support, rather it is intended to normalize future decisions about spousal support based upon how the general majority of past court decisions have dealt with the issue.

Influence of existing law

The Advisory Guidelines attempts to reflect current practice under the existing law. The Advisory Guidelines is not based on any particular theory of spousal support; it is an independent attempt to reflect the results currently found in the case law on the subject.

Income sharing

The essential concept underlying the Advisory Guidelines is the calculation of support based on the total disposable income available to both parties, rather than looking at each party's needs and means separately. The formulas work with the total amount of money collectively available to a couple.

Income sharing does not mean an equal division of income, however, and the ranges the Advisory Guidelines proposes when child support is paid is between 40% and 46% of the total disposable income available to both parties. When no child support is paid, the Advisory Guidelines gives the recipient a share of the difference between the recipient's income and the payor's income, which increases with the length of the relationship.

Entitlement to support

The Advisory Guidelines does not deal with whether a spouse is entitled to receive support. Entitlement is, of course, the first question to be decided when dealing with an application for spousal support. The Advisory Guidelines will only be used when a spouse is found to be entitled to spousal support.

Amount of support

When no child support is paid, the length of the marriage is central in determining both the amount of support payable and the duration for which support must be paid: the longer the relationship, the more support is paid for longer. The parties' gross incomes are used to determine spousal support.

Where child support is paid, the amount of support payable will be calculated taking into consideration the payment of child support and the different tax rules relating to spousal support and child support. The parties' net incomes are be used to determine spousal support.

Duration of support

In many cases, the Advisory Guidelines sets out a range of years that support will be paid for. In certain cases, such as long marriages, where the dependant spouse is older or when child support is paid, support will be paid for an indefinite period of time.

The key factors in determining the length of time for which support will paid are the length of the marriage plus any period of time the parties lived together before marriage, the age of the recipient of support and the age of the youngest child.

Upper and lower income limits

The Advisory Guidelines has both floors and ceilings: where a payor's income is below $20,000, no spousal support will be payable; and, where a payor's income exceeds $350,000, the payor should pay at the amount for incomes of $350,000. The payor's income above that ceiling will be taken into account only at the discretion of the court.

Exceptions to the formulas and restructuring the results

To every rule there is an exception, and the Advisory Guidelines is no different. The ranges the Advisory Guidelines formulas produce aren't carved in stone. Factors such as advanced age, illness, debt load, and so forth may suggest that the results for amount, duration, or both should be ignored.

The Advisory Guidelines also allows for the restructuring of a support award to pay more for a shorter time, to pay less for a longer time, or to pay it all up front in one lump sum. Restructuring keeps the total amount paid within the results generated by the Advisory Guidelines formulas.

Unmarried spouses

The Advisory Guidelines is written for married or formerly married spouses, because the federal government only has the authority to make rules about spousal support for married couples. The Advisory Guidelines is therefore based on the factors and tests set out in the Divorce Act rather than those set out in the different provincial laws about family breakdown and spousal support.

That said, the Advisory Guidelines works just as well to decide spousal support for married spouses and unmarried spouses since the law that applies to determine spousal support for unmarried spouses in British Columbia, the Family Law Act, works in exactly the same way as the Divorce Act.

The author's view

The Advisory Guidelines has melded seamlessly into family law practice in this province and is routinely used to determine spousal support, whether in the course of litigation, arbitration, mediation, or negotiation. Professor Thompson was exactly correct when he predicted that lawyers and the courts would come to rely on the Advisory Guidelines by custom. Frankly, the Advisory Guidelines offers a seductively easy solution to a difficult problem.

My views on the Advisory Guidelines have mellowed with time, and while many of my basic concerns remain, they have assumed a lesser significance. Arbitrariness is good, I have concluded. After all, the Child Support Guidelines are essentially arbitrary and so are many other principles of family law. Take the shared custody exception for the calculation of child support. Why 40%? Why not 38.5 or 41.3%? The answer to that question is, I think, "why not?" There has to be a tipping point somewhere, and exactly where on the scale that tipping point lies is immaterial as long as it has is some rational, defensible foundation.

The point of the arbitrariness of the Child Support Guidelines is to reduce conflict by setting out a fixed sum that must be paid depending on nothing more than the payor's income and the number of children. The same principle applies to the Spousal Support Advisory Guidelines, although the formulas are a lot more complicated. If an arbitrary set of numbers reduces conflict and saves money, I'm all for it, as long as those arbitrary numbers have a certain fundamental reasonableness to them.

DivorceMate's spousal support calculator

Until fairly recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the absence of public, free spousal support calculators. This seemed to me to be an appropriate function of government, particularly as it was government that funded the Advisory Guidelines project, however the Department of Justice had no enthusiasm for the project. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, would not sell their product to people who weren't employed in the justice system in some capacity.

This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, [www.mysupportcalculator.ca]. The website performs child support calculations under the Child Support Guidelines and spousal support calculations under the Advisory Guidelines. The results of the spousal support calculations do not precisely match the results produced by their bells-and-whistles product for professionals and do not account for all of the factors that can impact on the results (such as source of income, tax benefits, deductions and credits, payments to special expenses, and so forth). However, the results will be fine for most people most of the time. DivorceMate deserves much credit for making this resource available, and I thank them for it, whether the resource is a revenue-generating advertising platform or not.

The views of the courts

On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the Advisory Guidelines, in the case of W. v. W, 2005 BCSC 1010. The judge said that the Advisory Guidelines "provide a cross check against the assessment made under existing law", and that the formulas provided in the Advisory Guidelines are "consistent with the law in British Columbia". She then made an order for spousal support using the Advisory Guidelines as "a check," without expressly applying the Advisory Guidelines to determine the issue. The Advisory Guidelines, she held, is not law, and is not intended to become law.

On 19 July 2005, the court released its second judgment on the Advisory Guidelines, M.S. v. W.S., 2005 BCSC 939. In this case, the judge held, rather emphatically, that the court is not bound by the Advisory Guidelines in determining spousal support and that "equitable distribution can be achieved in a variety of ways and need not be calculated according to a strict formula."

This view was softened later in 2005 by the Court of Appeal in the case of Yemchuk v. Yemchuk, 2005 BCCA 406. In this case, the court held that the Advisory Guidelines reflects the general results seen in the case law on spousal support. While the court stopped well short of saying that the Advisory Guidelines must be used to determine spousal support, it did consider the Advisory Guidelines "a useful tool" and "a factor" to be considered in making an order for spousal support, and made an order for support that was within a hair's breadth of the numbers the Advisory Guidelines formulas produced.

The state of the law in British Columbia

As a result of Yemchuk, the law in British Columbia was that the Advisory Guidelines is a factor to be taken into account in fixing the amount and duration of an order for spousal support, but that it is no more than a factor. This changed with Redpath v. Redpath, 2006 BCCA 338, a 2006 decision of the Court of Appeal, in which the court held that it is an appealable error for a judge to fail to consider the results produced by the Advisory Guidelines. This moves things well beyond Yemchuk, as now a trial judge must consider the Advisory Guidelines formula results in making a decision on spousal support. The Court of Appeal went even further in Domirti v. Domirti, 2010 BCCA 472, a 2010 case, in which it held that an award of spousal support which falls substantially outside the Advisory Guidelines ranges may be an appealable error.

The law in British Columbia, then, is that the results of the Advisory Guidelines calculations must be considered when making a decision on spousal support. The Advisory Guidelines is, in other words, all but mandatory in this province.

(Of course, this also means that lawyers must become proficient in using the Advisory Guidelines formulas or they risk giving their clients and the courts incorrect information. The Without Child Support calculations, discussed later, are not terribly complex, but the With Child Support calculations demand a basic knowledge of the federal and provincial benefits and credits relating to children, the different deductions that apply to employment and self-employment income, received versus taxable dividends, and a few other wrinkles relating to the calculation of after-tax income. Owning the software required to do the Advisory Guidelines calculations isn't enough. Lawyers need to know how to expertly use that software, with tax and income issues in mind, and the software has to do the math and actually perform those calculations correctly.)

The law in other provinces

Many courts in Canada's other provinces and territories have talked about the Advisory Guidelines in much the same way as our courts have, although with varying degrees of enthusiasm. Alberta has led the charge against the Advisory Guidelines and is the province in which it is least likely to be used to determine a spousal support obligation.

Here is a sampling of judicial comment on the Advisory Guidelines.

Woodall v. Woodall, 2005 ONCJ 253, Ontario Court of Justice, 2005:

"Although the Spousal Support Advisory Guidelines may be of some assistance to the court on an initial application for spousal support, it must be noted that they are advisory only and are not binding on the court. More importantly, the authors of the guidelines make it very clear in the Executive Summary ... that the advisory guidelines do not deal with the effect of a prior agreement on spousal support and that this issue, like entitlement, is outside the scope of the advisory guidelines and would continue to be dealt with under the evolving law guided by the Supreme Court of Canada's recent decision in Miglin v. Miglin."

Puddifant v. Fraser, 2005 NSSC 340, Nova Scotia Supreme Court, 2005:

"Counsel urged the court to consider the Spousal Support Advisory Guidelines. These are not law."

Modry v. Modry, 2005 ABQB 262, Alberta Court of Queen's Bench, 2005:

"These Guidelines are not mandatory and are only a suggestion. There has been very little judicial analysis of the Guidelines as they are new."

"I suggest that courts will likely use these Guidelines as a bench mark to see what the support amount would be if the Guidelines were applies. Thus it will serve as another method of calculation, which when coincidentally echoing judicial discretion, will become referenced with approval. In other cases where the courts are either astonished by the payment proposition, that is that the math creates a number that is perceived to be too high or inadequate, the courts will shy away from its application."

And, finally, my personal favourite for the judge's powerful and florid language, V.S. v. A.K., 2005 ABQB 754, Alberta Court of Queen's Bench, 2005:

"The provisions of the Divorce Act as interpreted by the Supreme Court of Canada are the law in this country with respect to spousal support. The Spousal Support Advisory Guidelines are the work of two university professors, Carol Rogerson and Rollie Thompson, assisted by a small committee. Those with strong views to the contrary were not involved, nor was there widespread discussion of the guidelines prior to their publication. They have not been enacted by the Parliament of Canada or any Provincial Legislature nor are they the subject of any governmental regulation.

"The Guidelines are a cause for concern. There is no doubt that they are useful for a judge who does not wish to make a thorough and careful analysis of each case and wants a quick answer. However, it is not the role of judges to opt out for an easy answer. Rather judges are bound by the Divorce Act and the case law which require judges to do individual justice in each case and not look for a 'cookie cutter' answer.

"As well, the Guidelines are stated to be experimental. It is not the function of courts to experiment on the citizens of this country.

"The authors of the Guidelines state that the Guidelines do not change the law. However, in my view, they attempt to do so. For example, they advocate income sharing which has rarely been accepted in this country except for exceptionally long term marriages. It will not be long before someone will argue that disparity in income equals entitlement. As indicated by Chouinard, J. in Messier v. Delage, a person does not acquire a lifetime pension as a result of marriage. Likewise, marriage is not an insurance policy. The Guidelines also ignore the distribution of matrimonial property which the Supreme Court of Canada in Boston v. Boston, said was relevant. They ignore the goal of self-sufficiency as set out in the Divorce Act. Also they fail to take into account the growing trend, at least in Alberta, towards shared parenting.

"The Guidelines purport not to deal with entitlement. Under the Divorce Act there are degrees of entitlement based on a multitude of factors. However, the ranges set out in the Guidelines are not sufficient to cover the many possible degrees of entitlement.

"The Guidelines set an arbitrary and presumptive range for both amount and duration. The onus is reversed requiring the payor to justify an exception to the Guidelines. The presumptive nature of the Guidelines does away with a claim based on evidence.

"The stated purpose of the Guidelines is to bring more certainty and predictability to the determination of spousal support. As a result individual justice is sacrificed for consistency. Every case is different on its facts. There are often many variables. Flexibility and discretion are needed for individual circumstances.

"Judges should exercise extreme caution in using the Guidelines. The Divorce Act and the decisions of the Supreme Court of Canada call on judges to undertake a thorough analysis in each case. Not to do so is to disregard the views of the highest court in this country and to make a mockery of stare decisis."

The forumlas

The Advisory Guidelines describes two basic formulas: one for when child support is not being paid (the Without Child Support Formula), as might be the case if the couple have no children or if all of the children are adults and financially independent at the time of separation; and, one for when there is a legal obligation to pay child support (the With Child Support Formula), whether child support is actually being paid or not.

The main With Child Support Formula is designed for situations where the person receiving spousal support is also the person receiving child support. Since this isn't always the case and the amount of child support that's being paid isn't always the amount required by the Child Support Guidelines, the Advisory Guidelines has a few variations of the With Child Support Formula that will apply:

• when custody of the children is shared (when the parents have the children for an equal or near-equal amount of time),
• when custody of the children is split (when each parent has the primary residence of one or more children),
• when the person receiving spousal support is the person paying child support, and
• when all of the children for whom support is being paid are older than the age of majority.

The Without Child Support formula

The Without Child Support Formula is fairly straightforward:

The amount of support is 1.5 to 2 percent of the difference between the parties' gross incomes for each year of marriage.

For example, say a relationship is 10 years long, and Party A has a gross income of $50,000 and Party B has an income of $20,000. The difference between the parties' incomes is $30,000. Party B would have share in the difference of 15 to 20 percent (1.5 times 10 and 2 times 10), or between $4,500 and $6,000 per year. On a monthly basis, support would be paid at $375 to $500.

The length of time support will be paid is 0.5 to 1 year for each year of the relationship. If a couple have been together for more than 20 years, or if the age of the dependant party plus the number of years of the relationship equals 65, support will be paid indefinitely.

Using the same example, support would be payable for 5 to 10 years (0.5 times 10 and 1 times 10). If, however, the dependent party was 55 at the time of separation, support would be paid indefinitely (55 years of age plus 10 years equals 65).

The maximum amount payable under this formula ranges from 37.5% of the difference between the parties' gross incomes to 50% of the difference between the parties' incomes, net of taxes and benefits.

The maximum time spousal support can be payable under this formula ranges from an amount of time equal to the duration of the parties' cohabiting relationship to an indefinite amount of time.

The factors this formula uses are:

• the payor's gross income,
• the recipient's gross income,
• the length of time the parties lived together, and
• the recipient's age.

The main With Child Support formula

This formula is a lot more complex. In this formula, child support is taken out of the payor's gross income and the recipient's income, taxes are taken into account, and government benefits are added to the recipient's income. The reason why child support is deducted from the recipient's income is to reflect the costs that parents bears in raising the children.

The amount of support is 40 to 46% of the payor's individual net disposable income plus the recipient's net disposable income.

The payor's net disposable income is his or her gross income, minus taxes and minus his or her child support obligation, including the tax credits he or she receives as a result of paying spousal support.

The recipient's net disposable income is his or her gross income, minus taxes and minus his or her notional child support obligation, plus any government benefits he or she receives, less the taxes payable as a result of receiving spousal support.

Say the parties have an 8 year old child, the payor has a gross income of $50,000 and the recipient has an income of $20,000. The payor's net disposable income is $26,710 ($50,000 minus taxes of $15,570, minus annual child support of $5,112, minus EI deductions of $772, minus CPP deductions of $1,831). The recipient's net disposable income is $15,045 ($20,000 minus taxes of $4,410, minus notional child support of $2,052, minus EI deductions of $396, minus CPP deductions of $816, plus child tax benefit of $1,208, plus national child benefit of $1,511).

The family's net disposable income is $41,755 ($26,710 plus $15,045). 40 percent of the net disposable income is $16,702; 46 percent of the income is $19,207. After deducting the recipient's net disposable income, the difference between the recipient's income and 40 percent of the family's disposable income is $1,657 per year, and $4,162 for 46 percent.

On a monthly basis, spousal support would be between $138 and $346. The total the payor would pay each month would be spousal support plus $426 in child support.

The length of time for which support will be paid ranges from the longest of two formulas used to determine the low end of the range to the longest of two formulas used to determine the high end of the range. If a couple have been together for more than 20 years, or if the age of the dependant party plus the number of years of the relationship equals 65, support will be paid indefinitely.

The low range formulas for duration are:

1) 0.5 years for each year of the relationship

2) the length of time remaining until the youngest child starts full-time school

The high range formulas for duration are:

1) 1 year for each year of the relationship

2) the length of time remaining until the youngest child finishes full-time school

I told you it was complex. To quote Professor Thompson, "this is not a calculation you can do on the back of an envelope, you will need a computer program." This formula requires a detailed understanding of how income is determined under the Advisory Guidelines and of the various government benefits, tax deductions and tax credits that can apply to adjust net income.

I've written a paper on the subject for the Department of Justice, "Obtaining Reliable and Repeatable SSAG Calculations," which is available to the public. Be warned: it's a bit dry.

The maximum amount payable under this formula is the range the formula sets out: 40% to 46% of the difference between the payor's net disposable income and the recipient's net disposable income.

The maximum time spousal support can be payable under this formula is an indefinite amount of time.

The factors this formula uses are:

1. the payor's gross income,
2. the recipient's gross income,
3. the length of time the parties lived together,
4. the recipient's age,
5. the number of children child support is payable for, and
6. the number of years until the youngest child starts and leaves full-time school.

The other With Child Support formulas

The Advisory Guidelines describe a few other formulas that apply when:

1. all of the children are over the age of majority,
2. the parents have split custody of the children,
3. the parents have shared custody of the children,
4. the children live with the payor, or
5. the children are step-children to the payor.

These formulas use modified or hybrid versions of the Without Child Support and main With Child Support formulas.

Restructuring the results of the Advisory Guidelines formulas

The Advisory Guidelines includes a few ways to accommodate circumstances that might make the formulas' results unfair to the people involved. The Advisory Guidelines requires that the parties first attempt to use the ranges to solve the problem, but allows for the results to be restructured if adjustments within the ranges fail to solve the problem.

There are three ways the results can be restructured:

1. pay more spousal support each month, but for a shorter period of time,
2. pay less each month, but pay for a longer period of time, or
3. pay the total amount payable over the period of the award in a single lump sum.

The point of each option is that the total amount payable under the formula results stays the same. The total amount is just paid sooner or later than the results for duration would normally require.

Restructuring will not work if the length of time support is to be paid for is indefinite. In cases like this, the best option is probably to build in a review date, a date on which the recipient's entitlement to receive spousal support will be checked.

Exceptions to the Advisory Guidelines formulas

If adjusting support within the ranges doesn't work and if restructuring support doesn't work, the Advisory Guidelines allows parties to depart from the numbers produced by the formulas to accommodate their special circumstances. The authors of the Advisory Guidelines are clear that these exceptions are to be treated as a last resort.

Greater need for compensation

In shorter marriages, the results produced by the formulas might not reflect a recipient's right to be compensated for a sacrifice made in the course of the marriage. Circumstances that might fall into this exception would include: giving up a job to be with the payor; or, moving across the country to be with the payor and losing a job or a business.

Under this exception, the results produced by the formulas for amount and duration will not apply.

Illness

The length of time the formulas require support to be paid may not be adequate for a recipient who is ill or disabled, or otherwise unable to become self-sufficient.

Under this exception, the results produced by the formula for duration will not apply.

Payment of family debts

A payor who winds up being responsible to pay for debts incurred during the marriage may not be able to meet the payments required by the formula for amount. This will particularly be the case for families whose debts exceed their assets.

Under this exception, the results produced by the formula for amount will not apply.

Other support obligations

In cases where a payor has an obligation to provide support to other people, such as prior spouses or children from previous relationships, the payor may not be able to pay spousal support at the amount required by the formula.

Under this exception, the payor's income is adjusted to deduct the amount of support paid as a result of the previous relationship before calculating the amount spousal support to be paid for the present relationship.

Other exceptions

The Advisory Guidelines allows still other exceptions from the formulas to address situations where a child has special needs which result in the parents having greater expenses than other parents; where a relationship was very short but resulted in significant economic loss to the recipient ― like the loss of a career opportunity or an expensive move; where payment of support within the ranges for amount is not sufficient to meet the recipient's needs; and, where the payor's income is not taxed.

If you think your situation falls into one of these exceptions, or one of the exceptions discussed above, you should seriously consider hiring a lawyer for advice about your situation and how the Advisory Guidelines may apply.

Resources and links

Legislation

• Family Law Act
• Divorce Act

Documents

• Spousal Support Advisory Guidelines
• Spousal Support Advisory Guidelines: Report on Revisions
• Obtaining Reliable and Repeatable SSAG Calculations, by JP Boyd

Links

• DivorceMate’s free basic spousal support calculator
• Legal Services Society's Family Law Website: Spousal support
• Canadian Bar Association BC Branch: Script on spousal support
• Department of Justice: About spousal support
• SSAG User’s Guide