The Spousal Support Advisory Guidelines

The Spousal Support Advisory Guidelines is an academic paper published by the federal Department of Justice in July 2008. It is not a law and is not expected to become a law. However, when a spouse is entitled to receive spousal support, lawyers, mediators, arbitrators and judges often use the Advisory Guidelines to figure out how much spousal support should be paid, and how long spousal support should be paid for.

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 the exceptions to the formulas.

An introduction to the Spousal Support Advisory Guidelines

In 2001, the federal Department of Justice formed an advisory working group to look into the feasibility of creating uniform guidelines for the calculation of spousal support the way the Child Support Guidelines have created standards for the calculation of child support. The group was composed of judges, family law lawyers, law school faculty members, and social workers, and 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. This was supplemented by other materials, including the Revised Users Guide, published in 2016.

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. In fact, in July 2008, the Department of Justice said that it had no plans to turn the Advisory Guidelines into a law and that it didn't intend to do so.

I've heard nothing to suggest a contrary intention since.

The British Columbia Court of Appeal, however, has said that the court must consider the Advisory Guidelines when making orders about spousal support, and the decisions which fall substantially outside the ranges suggested by the Advisory Guidelines may be appealable. Lawyers, mediators, arbitrators and judges now routinely use the Advisory Guidelines in making decisions about spousal support. Read more below under the heading "The state of the law in British Columbia."

The Advisory Guidelines in a nutshell

The Spousal Support Advisory Guidelines is an attempt to capture how most court decisions on spousal support have determined how much support should be paid, and how long support should be paid for, in a number of mathematical formulas. Professors Rogerson and Thompson say that the Advisory Guidelines is not intended to change the law on spousal support, but is intended to normalize future decisions about spousal support based upon how the general majority of past court decisions have dealt with the issue.

Income sharing

The essential concept underlying the Advisory Guidelines is the calculation of spousal support amounts 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. When child support is being paid, the Advisory Guidelines proposes a spousal support range equal to 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 relationship 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, and the longer it will be paid for. 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 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 when the relationship is long, where the dependant spouse is older, or when child support is paid, support will be paid for an unspecified period of time.

The key factors in determining the length of time for which support will be paid are the length of the relationship, including any period of time married spouses lived together before they got married, the age of the recipient, and the age of the spouses' 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 usually pay at the amount for incomes of $350,000.

In the case of ceilings, the payor's income above $350,000 will be taken into account at the discretion of the court. Although, in the 2014 case of Hathaway v. Hathaway, the Court of Appeal warned that the court would still have to be given reasons to depart from the Advisory Guidelines ranges, even when the payor’s income is substantially above $350,000.

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 on may suggest that the results for amount, duration, or both should be changed or ignored altogether.

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.

DivorceMate's spousal support calculator

Until relatively recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the lack 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. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, wouldn't sell their product to people who weren't employed in the justice system in some capacity. This left good, high-quality calculators only available to lawyers and judges, and that didn't seem fair.

This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, mysupportcalculator.ca. The website performs child support calculations under the Child Support Guidelines and spousal support calculations under the Spousal Support Advisory Guidelines. The results of the online spousal support calculations don't precisely match the results produced by their bells-and-whistles product for professionals and don't account for all of the factors that can impact on the results. 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.

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.. The court 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.. In this case, the court 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. 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 to be a useful tool and a factor to be considered in making an orders for spousal support, and made an order for support that was within a hair's breadth of the numbers the Advisory Guidelines formulas produced.

As a result of Yemchuk, the Advisory Guidelines became 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, 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 trial courts were required to consider the Advisory Guidelines formula results in making a decision on spousal support. In 2010, the Court of Appeal went even further in Domirti v. Domirti, which held that awards of spousal support that fall substantially outside the Advisory Guidelines may be appealable.

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.

The formulas

The Advisory Guidelines describes two basic formulas:

• The Without Child Support formula: used when child support is not being paid, 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.
• The With Child Support formula: used when there is a legal obligation to pay child support, whether child support is actually being paid or not.

The 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 variations of the With Child Support Formula that can be used when:

• the children's parenting time is shared equally or near-equally between the spouses,
• the children's parenting time is split, so that one or more children live primarily with each spouse,
• the person receiving spousal support is the person paying child support, and
• all of the children for whom support is being paid are older than the age of majority, 19 in British Columbia.

The Without Child Support formula

The Without Child Support Formula is fairly straightforward.

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

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 a 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.

Duration: 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, for an unspecified length of time.

Example

Using the same facts, 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 the Without Child Support Formula ranges from 37.5 percent of the difference between the spouses' gross incomes to 50 percent of the difference between the parties' net incomes, that is, their incomes calculated after 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 spouses' 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 spouses lived together, and
• the recipient's age.

The main With Child Support formula

This formula is a lot more complex. In the With Child Support Formula, child support is taken out of the payor's gross income and the recipient's income, taxes and payroll deductions 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 bear in raising the children.

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

(The "payor's net disposable income" is their gross income, minus taxes and minus their child support obligation, including the tax credits they receive as a result of paying spousal support. The "recipient's net disposable income" is their gross income, minus taxes and minus their notional child support obligation, plus any government benefits they receive, less the taxes payable as a result of receiving spousal support.)

Example

Say the spouses 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 total 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.

Duration: 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 for an indefinite, unspecified length of time

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, however. It's a bit dry.

The maximum amount payable under this formula is the range the formula sets out: 40 to 46 percent 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, unspecified amount of time.

The factors this formula uses are:

• the payor's gross income,
• the recipient's gross income,
• the length of time the spouses lived together,
• the recipient's age,
• the number of children child support is payable for, and
• the number of years until the youngest child starts and leaves full-time school.

Restructuring the results of the Advisory Guidelines formulas

The Spousal Support Advisory Guidelines includes a few ways to accommodate circumstances that might make the formulas' results unfair to the spouses involved. The Advisory Guidelines requires that the spouses first attempt to use the usual 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:

• pay more spousal support each month, but for a shorter period of time,
• pay less each month, but pay for a longer period of time, or
• 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.

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, Chapter 12 of the Advisory Guidelines contains exceptions, which are recognized categories of departure from the formula outcomes that have been included in the Advisory Guidelines so that parties can accommodate their special circumstances. According to Spousal Support Advisory Guidelines: The Revised User's Guide, a 2016 update from Professors Rogerson and Thompson, there has been "a steady increase in the use of the [Advisory Guidelines] exceptions, better every year, and a growing body of case law applying them, including appellate level decisions."

Greater need for compensation

In shorter relationships, 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 relationship. 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 relationship 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 of 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 that result in the parents having greater expenses than other parents; 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, 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 options and how the Advisory Guidelines may apply.

Resources and links

Legislation

• Family Law Act
• Divorce Act

Documents

• Spousal Support Advisory Guidelines
• Obtaining Reliable and Repeatable SSAG Calculations, by JP Boyd

Links

• DivorceMate’s free basic spousal support calculator
• Legal Aid BC's Family Law website's information page "Child & spousal support"
  • See "Spousal support"
• Dial-A-Law Script "Spousal support"
• Department of Justice's website "About spousal support"
• Spousal Support Advisory Guidelines: The Revised User's Guide

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 29 June 2022.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.