Spousal support issues are very complex, particularly in determining how much should be paid and received. Separating spouses used to be put through the proverbial wringer, being cross-examined on their monthly spending and whether, for example, $50 per month on haircuts was reasonable. This meant that getting spousal support, or defending against paying spousal support was extremely costly for people. In 2008, due to significant efforts by two professors (Carol Rogerson of U of T and Rollie Thompson of Dalhousie U) as well as a number of lawyers, judges and other stakeholders, the Spousal Support Advisory Guidelines (“SSAG”) were published. What these guidelines do is assist lawyers and judges in quantifying levels of spousal support payable to spouses. Unlike the Child Support Guidelines, however, the SSAG are not “law”. They are merely guidelines for the courts to consider in deciding how much should be paid and for how long. The SSAG have however reduced the level of litigation and uncertainty over the issue of spousal support since their publication.
However, since their publication, the general practice of the judiciary was to only apply the SSAG for initial determinations of spousal support levels and duration of payments. Generally speaking, it was thought that they should not be applied in situations where the issue of spousal support is being reviewed, for example if someone’s income increased or decreased in a material way, or if one spouse retired etc. This meant that while we had the benefit of some consistency for initial determinations of spousal support, when it came time to review the payments down the road, we were back to the same level of uncertainty.
Six years after the publication of the SSAG in their final form, the Court of Appeal for Ontario has finally provided more clarity by supporting the use of the SSAG in the context of support reviews1. The case involved a couple with four children who divorced after 15 years of marriage. At the time of separation, the wife was on a disability pension as well as private disability benefits due to health issues, and was earning approximately $30,000 per year while the husband was earning more than $100,000 per year.
The wife had primary care of the children and received approximately $2,300 per month in child support and $800 per month in spousal support. The initial amount of spousal support amount was set at a lower amount to take into account the high amount of child support she would receive. When the children got older and their child support decreased over time, the wife claimed that her spousal support should have increased.
The Court found that her level of child support was in fact lower than she should have received based on her need, and that the SSAG should apply for purposes of the review, and endorsed the use of the SSAG in spousal support review situations. For more information, read my full article, Key Ruling Clarifies Use of Spousal Guidelines in Support Reviews, which appeared in the October 31, 2014 issue of the Law Times.