19 February 2017

The Spousal Support Advisory Guidelines: Why NOT to default to the MID range

by Karen F. Redmond, Family Law Lawyer

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)