The Spousal Support Advisory Guidelines: Why NOT to default to the MID range
Has
anyone other than JP Boyd read the entire Spousal Support Advisory Guidelines (SSAG)
Revised Users Guide (“RUG”)? SSAG RUG I have to confess that I did not read the
entire original 2008 SSAG Users Guide, nor did I make it through the 2010 updated
version. But, I have read the entire 2016
update and I learned a few things, ok I learned a lot, which I hope to share
with you here in this next series of Blogs about the SSAG. This my attempt to share some of these
nuggets and to touch on some of the common mistakes and misconceptions about spousal
support calculations.
(I
didn’t know, for example that it was the makers of the DivorceMate software who
in 2011 provided their online calculators free for use by the general public
who previously could only access spousal support calculators by hiring a lawyer
or other professional. online calculator .
Shout out to DivorceMate.) But, I
digress…..
It
appears that one of the most frequent mistakes is an automatic deference by
lawyers and the courts to the ‘mid-range’ of the guidelines without much
consideration for the factors which support the low and high range of the calculations. The writers of the RUG are clear that “the mid-point is
NOT some kind of “norm”, with the rest of the range only to be used in unusual
circumstances” The tendency to default
to the mid range should be avoided. They
go on to say,
"If anything, in the basic formula cases for low to
middle-income spouses, there should be a tendency for spousal support to push
up into the mid-to-high end of the SSAG range, given the significant
compensatory claims with children, the needs in the home of the primary care
parent and the constraints of ability to pay upon the range. A simple default
to the mid-point likely leaves many of these recipients under-compensated. There
may be good reasons to locate in the mid-to-lower end of the SSAG in some of
these cases, notably the specifics of ability to pay for lower income payors in
individual cases, but these need to be articulated. The dynamics of location
with the range will be different where there is only one child or spouses with
higher incomes."
From
a review of the case law, the following factors may favour a support
award at the higher end of the range:
The recipient has a strong compensatory
claim (eg. recipient moved/gave up employment for payor’s benefit; recipient
funded payor’s education/training; recipient sacrificed employment
opportunities because of child care).
The recipient has limited income.
The recipient has limited earning
capacity.
The recipient has compelling needs and
standard of living.
The recipient is older.
The recipient will be undertaking
retraining or education in the immediate future which is aimed at promoting
self-sufficiency.
The recipient has primary care of very
young children, several children and/or special needs children (ie. age, number
and needs of the children can restrict the custodial parent’s ability to work).
The marriage is long term.
The marriage is short with young
children and a stay-at-home custodial parent.
There is no property to be divided.
The recipient is carrying significant
family debts (but not severe enough to fall within debt payment exception).
The
following factors may support an award at the lower end of the range:
The recipient has a weak compensatory claim.
The payor has limited income.
The payor has limited earning
capacity/ability to pay.
The recipient does not have significant
needs (eg. recipient has solid employment/income; recipient has reduced living
expenses (ie. subsidized housing; mortgage free matrimonial home; shared
housing costs)).
The recipient has remarried/repartnered.
The payor has significant needs.
The recipient is younger.
There is an unequal division of property
in favour of the recipient.
The recipient holds sizeable exempt or
excluded assets after division of property.
The payor is carrying significant family
debts (but not severe enough to fall within debt payment exception).
In the case of a traditional marriage,
the payor has costs associated with going to work, in contrast to the
non-working recipient.
An incentive for the recipient to make
greater efforts towards self-sufficiency is needed (although imputing income
can also address this factor).
There are local and regional differences
(eg. Atlantic provinces).
The payor has significant direct access
costs (especially important when the payor is at the lower end of the income
spectrum).
The payor makes mandatory deductions for
pension contributions (especially important when the payor is at the lower end
of the income spectrum).
This
list is from a paper I found on the DM website HERE
My
take: This is a good reminder to us all
to perhaps ask a few more questions of our clients before we make assumptions
about where they may or may not fall within the SSAG range.
Next
week: the case for 50/50 NDI (an equal
sharing of net disposable income)
