In 2008 the Federal Department of Justice Canada, along with the assistance and contribution of the University of Toronto and Dalhousie Law School published the Spousal Support Guidelines in order to assist family law lawyers and Judges in ascertaining an assessment of spousal support. It is however important to note that the Spousal Support Advisory Guidelines are, unlike the Child Support guidelines neither legislated nor binding, and in this regard are advisory only. Nevertheless, despite their non-binding nature they represent a synthesis of case law regarding spousal support and are not only incredibly useful but also highly persuasive in the Courts.

That being said, the Spousal support guidelines do not apply at all (even persuasively) in a number of cases such as;

  • Where the spouses earn more than $350,000 (although Slongo v Slongo, Fielding v Fielding suggests this can be overlooked. AlsoElgner v. Elgner suggests that the SSAG does not cap the payor income to be considered at $350,000 but only that in such a case the SSAG formula shouldn’t be ‘automatically applied’; this will be discussed in greater detail further down in this article.)
  • Where the spouses earn less than $20,000
  • Where prior agreement provides for support (in case of a variation application, divorce act factors are considered upon establishment of material change threshold being met; Supreme Court of Canada’s decision in Miglin applies);
  • Where the Spousal Support Guidelines are in conflict with any applicable authorities (the applicable authorities will prevail); etc.

The application of the Spousal Support Guidelines can also result in divergent results based upon regional, rural and urban variations based upon the merit of differing costs of living. Additionally, the Spousal Support Guidelines are not meant to be used as a formula or software in order to calculate the precise amounts of Spousal support or maintenance, they are to be considered contextually and applied in their entirety. In light of the aforementioned it can be said thus that although the Spousal Support Guidelines are a useful starting point for a spousal support assessment, the individual circumstances of the parties can result in divergent results.

Examples of Spousal Support Guidelines application in Ontario Case Law:

i). Where Guidelines were considered but not necessarily applied:

Slongo v. Slongo [2017] O.J. No. 1634;  the payors income exceeded $350,000, however the SSAG formula still applied for a year where a lump sum pension payment was taken in order to compensate the recipient, the courts held that the recipient was entitled to the support calculated by considering the Spousal Support Advisory Guidelines formula to the full amount.

Fielding v. Fielding [2015] O.J. No. 6742; payor income once again over $350,000. Spousal Support Advisory Guidelines not generally applicable in this case but suggested a range of $7365 to $10,328. An amount of $10,000 was deemed reasonable by the courts

Rossi v. Rossi [2005] O.J. No. 4136; A one-and-a-half-year marriage where the payor paid 7 times the maximum support as stipulated in the guidelines in interim relief. The courts consulted the guidelines and support was cancelled.

Waye v. Cook [2015] O.J. No. 6241; Spousal Support Advisory Guidelines considered by the courts. The parties were over 65 years of age and the wife found to have been economically disadvantaged by Husbands career move to Europe. Spousal Support granted at the mid point between the low and mid of the Spousal Support Advisory Guidelines range.

ii).  Examples where Spousal Support Advisory Guidelines applied;

Cork v. Cork [2014] O.J. No. 2006.

The wife applied to increase temporary spousal support from a monthly $18,361 to $19,000 on the grounds that the Husbands income had increased from $536,674 to $552,949. The courts found that $40,000 was to be calculated in the wife’s income due to her failure to upgrade skills. SSAG calculations were applied and since the parties were in long term marriage the spousal support range was found to be between 37.5% and 50% of the difference in gross income and spousal support was reduced to $16,000 per month.

In the Judgment of this case the courts also clarified to a degree whether the Spousal Support Advisory Guidelines formula for calculating the quantum of support applies and to what extent to cases where the payor has an income over $350,000. The courts stated;

“The SSAG‘s are a useful indicator for determining spousal support regardless of the payor’s income. However, when incomes surpass $350,000.00 the objective becomes less about striving to equalize the parties’ incomes, even in a long-term marriage. In these circumstances, the SSAG calculations are often considered as one part of the overall consideration of factors that determine spousal support.”

What this appears to mean is that the courts may (as SSAG is not binding) apply the SSAG formula up till the $350,000 of the income, and any income above that will be subject to additional considerations.

iii).  Example where SSAG amounts found to be inadequate;

Niranchan v. Nadarajah [2015] O.J. No. 1400; The SSAG formula for calculating the quantum of support was found to be inadequate and incapable of providing for the basic needs of the wife who was previously completely self-sufficient in Sri Lanka and gave up job there to move to Canada. The courts disregarded the SSAG and made order of 61.3% of the net-disposable income of the husband (higher than the SSAG formula granted).

Skirten v. Lengyel [2007] O.J. No. 679 ; Both parties had a very low income, the SSAG formula stipulated no spousal support in this situation but the courts chose to disregard this and ordered $50 per month spousal support.

iv). SSAG considered inappropriate:

Cantave v. Cantave [2014] O.J No. 4142; Mother and father had a separation agreement whereby the Mother who earned more agreed to pay the father. The Father breached the separation agreement by voluntarily and unanimously giving up an additional year of employment where he would have made $76,000. The courts held it would be unfair to require that the mother continue to pay the Father despite his voluntary refusal to earn where he could have. Interim (temporary) support of $1,700 per month for 5 months ordered in order to allow the father to transition.

Tscherner v. Farrell, [2014] O.J. No. 1215; held that “The wife was entitled to spousal support of $700 monthly. The amount was less than that suggested by the Guidelines as the wife’s diminished income earning capacity resulted from her disability which was a result of the car accident that occurred years after separation, the husband’s increased earning capacity occurred years after separation, there was no substantial economic merger during the marriage and the wife had substantial assets.”

Simpson v. Grignon [2007] O.J. No. 1915 (Ont. S.C.J); the Spousal Support Advisary Guidelines calculation of spousal support was found to be insufficient for a wife who had suffered from a disability from the start of the four-and-a-half-year marriage. A higher amount than that of the SSAG was ordered in her favour.

To get advice on your own Spousal Support entitlement or obligations please contact MEHDI AU LLP today and one of our Family Lawyers on staff will look into to your matter and provide advice tailored to your specific matter.

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Use of the site and sending or receiving information through it does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.