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Posts from the ‘Ontario Spousal Support’ Category

Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments


Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

In this video we review ways to enforce child and spousal support Orders in Ontario.

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video will review four points to consider.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada


Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

In this video we review some of the more common questions about spousal support in Ontario, including:

1) What is spousal support?

Spousal support — which is sometimes called “alimony” — is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.

2) What is the legal basis for obtaining spousal support?

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

A court may order spousal support, and will set an amount and duration based on various factors that exist between the parties. The jurisdiction for a court to award spousal support comes from either the federal Divorce Act (as part of a divorce order), or from the Ontario Family Law Act.

3) What factors dictate the duration and amount of spousal support?

The determination of how much support a spouse should receive, and for how long, is a complex equation. In making a spousal support order courts consider several factors, including:

• the length of the entire relationship (including time living together before marriage);

• the financial circumstances of each spouse, both during the relationship and
after separation;

• the functions performed by each spouse during the relationship;

• the financial repercussions or detrimental financial effect on one or both spouses of caring for each other or for any children of the relationship; and

• each spouse’s ability to support him or herself.

In some cases one spouse may have suffered a financial loss or disadvantage as result of joint career and lifestyle decisions made during the marriage or relationship (for example the decision to move the family so that a spouse can take a new job, or that the mother will give up her career to stay home and raise the children). A disadvantaged spouse will be entitled to support to compensate him or her for that setback.

There may also be a limit on the duration of the support that one spouse receives from the other, as means of encouraging the recipient spouse to achieve post-separation financial independence as quickly as possible. Alternatively, the order may contain a built-in review mechanism.

Note that there are certain tax consequences relating to spousal support — both from the payor’s and the recipient’s perspective. In short — and provided it is paid pursuant to either a written separation agreement or a court order — it is considered “taxable income” in the hands of the spouse who receives it, and is deductible from the taxable income of the spouse who pays it. These tax ramifications are taken into account when determining the amount of support.

4) How does the spouse’s behaviour affect spousal support entitlement?

Generally speaking, the entitlement to spousal support is not dependent on the spouse’s pre- or post-separation behaviour, morality, or ethical conduct. In other words, a spouse who is otherwise entitled to spousal support after the dissolution of a marriage will not become disentitled because he or she was violent, or because it is later discovered that he or she had an extra-marital affair during the marriage.
Having said that, a court’s determination of the amount and duration of spousal support will hinge upon each party providing forthright, comprehensive financial disclosure to each other. If in making the determination the court feels that one spouse has withheld financial information (e.g. has failed to disclose a source of significant income), the court may impute income to the spouse and award the other spouse his or her support accordingly.

5) What happens if there is a change in circumstances?

As indicated above, the notion of one spouse receiving spousal support from the other is rooted in several concepts and principles, including:

1) the financial disadvantage or dependence that relationship gave rise to must be redressed post-separation; and

2) the ability of the paying spouse to fund the spousal support award must be taken into account.

The amount or duration of spousal support may have to be adjusted if there is significant change in the financial circumstances of either party. This change must be significant, and must not have been foreseen when the separation agreement or the court-ordered spousal support award was made.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Collaborative Law Practice – Coming to More Ontario Law Firms Near You

Collaborative Law Practice – Coming to More Ontario Law Firms Near You

As the name of my firm says, here at Russell Alexander Collaborative Family Lawyers we practice what is known as “Collaborative Family Law”, which is a voluntary, contract-based Alternative Dispute Resolution (ADR) process for those seeking to negotiate a resolution of their Family Law dispute, rather than having one imposed on them by a court or an arbitrator. In many ways, it’s similar to mediation, except that it usually does not involve the participation of a neutral third party to help the couple reach a resolution.

Although use of the Collaborative Law process is perhaps not as widespread in Ontario as in other North American jurisdictions, the release on October 27, 2016 of the Ontario Collaborative Law Federation’s “Draft Accreditation Standards” paves the way for an even broader presence in the province. These Accreditation Standards aim to bring consistency, professionalism and heightened standards of competence to practitioners of Collaborative Law (like my firm).

The Ontario Collaborative Law Federation currently represents 18 groups of specially-trained professionals across the province, and imposes rigorous standards for membership. (For example, in the case of Collaborative Legal Professionals, it requires the completion of at least 40 hours of collaborative training, including interest-based negotiation skills training and Collaborative Family Law skills training).

Moreover, all Collaborative lawyers are already licensed and regulated members of the legal profession, and in their role as advocates for their clients, are already duty-bound to adhere to certain professional standards imposed by the Law Society of Upper Canada.

But once approved, the Draft Accreditation Standards will provide an additional layer of obligation and competence for all professionals who participate in the Collaborative Law process.

Accreditation is voluntary, but those who will choose to obtain this designation will have to adhere to the Accreditation Standards’ mandatory requirements (once they are approved); however, those who opt not to apply for accreditation are not prohibited from engaging in Collaborative Law provided they adhere to the same requirements.

In other words, once they are in final form, the Accreditation Standards will effectively govern both those who choose to seek accreditation, and those who do not.

This will be a welcome addition to the Collaborative Law field, and by extension a good development for Family Law litigants in Ontario. In the U.S., since the year 2010 there is already a Uniform Collaborative Law Rules and Act, which among other things standardizes the most important features of Collaborative Law participation agreements between the parties, and requires Collaborative lawyers to take certain steps and make certain inquiries of their clients.

In Canada, the use of Collaborative Law has perhaps been somewhat piecemeal in nature, but it’s growing. The Alberta Family Law Act (in section 5), the British Columbia Family Law Act (in section 8), and Saskatchewan Family Property Act (in section 44.1), each require lawyers who act on behalf of a spouse to inform him or her of the Collaborative Law service that might help resolve their matters. The legislative counterpart in Ontario (i.e. the Family Law Act) does not contain such a requirement, but it’s likely on the horizon soon.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Wednesday’s Video Clip: Ontario Divorce Law – Is Collaborative Practice Right for You?


Wednesday’s Video Clip: Ontario Divorce Law – Is Collaborative Practice Right for You?

Collaborative Practice is a way for you to resolve disputes respectfully – without going to court – while working with trained professionals who are important to all areas of your life.

In this video we introduce the concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

One Letter on High-End Stereos Frames Court’s View of Couples’ Dispute – Orders Husband to Pay $20,000 Per Month in Support

theatre
One Letter on High-End Stereos Frames Court’s View of Couples’ Dispute – Orders Husband to Pay $20,000 Per Month in Support

While reading a rather routine Appeal judgment in a case called Colivas v. Colivas, I took a quick look back at the earlier judgment that had been appealed on the first place, only to find some interesting passages by the lower court judge.

That earlier ruling began this way:

Occasionally, during the argument of an application, an item of evidence is presented of such an arresting nature that it at once animates and frames the entire exercise.

The court went on to frame the core issue between the now-separated couple:

[The wife] presents the marital lifestyle as one of wealth, comfort and privilege. [The husband] presents a different picture. He essentially submits that he made a good deal of money on one business deal, involving the sale of his interests in [a business]. He says the family has supported its lifestyle since 2006 by depleting the sale proceeds. [The husband] now urges restraint and modesty going forward.

I return to that arresting bit of evidence. The materials filed by [the wife] on the motion include a copy of a letter written by [the husband] in late December 2008 to a third party identified only as “Marty”. The substance of the letter makes it evident that “Marty” is someone that [the husband] has done business with in the past – specifically referencing the purchase of some rather high-end audio-visual equipment. The following is excerpted from the letter:

Dear Marty,

I have been dealing with you for a number of years now. My first purchases were slightly above entry-level pieces. At that time, you had sold me Martin Logan Speakers, Clasee Processors, and the Single Chip Runco Projector. Although I was very happy with my initial system, I have since become obsessed with having the very best possible audio/video gear money can buy.

Under your recommendation, I purchased the following: [list of equipment omitted]

You would expect that at over $250,000 you would have not only the very best quality sound and picture, but also a system that is bullet proof in terms of its reliability. And this is where you come up short…

As you are aware I entertain regularly with some of the wealthiest and most influential people in the City of Toronto in my Theatre Room. I use my impressive room and system to watch sporting events, concerts and movies and listen to music. You can imagine my embarrassment when half way through a concert or movie I get a crackling sound!

There is a certain voyeuristic thrill associated with reading a letter such as the one written by [the husband] to Marty. It offers a glimpse into a world almost all Canadians are entirely unfamiliar with. A world where private theatre rooms are powered by audio-visual systems worth more than a quarter of a million dollars. Undoubtedly there is a certain element of braggadocio to the letter. Nevertheless, it informs the matter now before the Court for a number of reasons, including:

(i) It demonstrates that the [husband and wife] lived in rather rarefied circumstances, at least at the end of 2008;

(ii) It further demonstrates that [the husband] considered himself, at least at the end of 2008, to be a wealthy man, who moved in circles of money and influence; and,

(iii) It undermines the credibility of [the husband’s] position that it is his wife who has had an insatiable and unsustainable appetite for spending. He deposed that her “rampant spending was a significant source of friction between us”. [The wife’s] spending habits may very well have been profligate. But, clearly, if she had a penchant for extravagant spending, she was not alone.

In the end, the court for the most part preferred the wife’s position, and granted her child and spousal support totaling $20,000 per month on an interim basis, even though the court expressly recognized that the husband would need to encroach on his business capital in order to meet this level of monthly support.

I suppose the lesson to be learned from this, is that Family courts will take a good, hard, intense and illuminating look at the surrounding circumstances of couple’s life, and may draw inferences from even correspondence directed at third parties.

This is a good thing to keep in mind when framing your position in court on spousal and child support issues.

For the full text of the decisions, see:

Colivas v. Colivas, 2013 ONSC 168 (CanLII)

Colivas v. Colivas, 2016 ONSC 715 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

The Factors That Influence Lump-Sum Spousal Support Awards

spousal-support

The Factors That Influence Lump-Sum Spousal Support Awards

Between divorced and separated couples, a spousal support order is usually structured so that one spouse will pay the other on an ongoing basis, often monthly and for a term of many years (at least until there is a material change that dictates that the order should be changed). In other words, spousal support is paid out over time, with periodic payments made in specified amounts on a regular basis. The majority of spousal support orders take this form.

However, courts have other payments structure options available to them. Somewhat less common is an award calling for a single, lump-sum payment, which is specifically authorized under section 33(9) of the Ontario Family Law Act.

In an Ontario Court of Appeal decision called Davis v. Crawford, the factors and principles that favour a court making (or not making) such an award were considered. As part of the overarching concern over whether the paying spouse can make a lump-sum payment without undermining his or her self-sufficiency, the court must consider (among other things):

• Both parties’ current assets and means;

• The assets and means they are likely to have in the future;

• The paying spouse’s capacity to provide support.

In Davis v. Crawford the Appeal Court emphasized that a court must weigh the perceived advantages of making the lump sum award being considered in the particular case against any presenting disadvantages of making such an order.

These can include:

• Whether, if the lump-sum award is ordered, the recipient spouse is unlikely to receive any equalization payment or child support payments to which she is entitled.

• Whether there will be any resulting disparity in the former spouses’ income, if the recipient spouse will not receive his or her share of the equalization payment (that otherwise represents the apportionment of the couples’ Net Family Property).

• Whether there will be a resulting inequity because the paying spouse will possibly be discharged from bankruptcy (and thus released from his or her equalization obligation, which was a topic I have written about previously [RA add link to prior article on bankruptcy])

For the full text of the decision, see:

Davis v. Crawford, 2011 ONCA 294 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Can the Post-Bankruptcy Distinction Between Support and Equalization Payments be Circumvented?

Past Due

Can the Post-Bankruptcy Distinction Between Support and Equalization Payments be Circumvented?

Recently I wrote “How Does an Unpaid Equalization Payment Intersect with Bankruptcy?” about the impact that a paying spouse’s bankruptcy has on the recipient spouse’s entitlement to nonetheless receive either child/spousal support, or an equalization payment as part of a separation or divorce. I observed that – perhaps surprisingly – Canadian law treats these two categories quite differently in terms of the post-bankruptcy collectability by the recipient spouse.

Perhaps this distinction is why some courts might be tempted to try to re-cast a spouse’s entitlement, to maximize the possibility that his or her valid family law-related claim against the bankrupt spouse – essentially in creditor/ debtor roles – will be more likely to be preserved and enforced after the bankruptcy.

But as a case called Mwanri v. Mwanri illustrates, this re-characterization is not always appropriate or permissible in law.

After a trial, the husband and wife were granted a divorce, with the husband being ordered to pay the wife about $50,000 as an equalization payment. However, he filed an assignment in bankruptcy soon after, without ever having paid a dime in satisfaction of that obligation (his spousal and child support payments were current, however). It was unlikely that his assets would be sufficient to satisfy the amount he owed the wife in equalization.

In light of this and other developments, the wife applied to a motions judge for an order that his ongoing child and spousal support obligations be converted to a lump-sum amount in the same amount as the equalization payment would have been, i.e. $50,000. The motion judge agreed, ostensibly under a broad discretion to do so under the Ontario Family Law Act and the federal Divorce Act. The husband was discharged from his bankruptcy shortly after.

From a legal standpoint, the motion judge’s ruling effectively circumvented the distinction in law between the types of award: Unpaid equalization payments got swept into the husband’s bankruptcy and evaporated once he was discharged, while spousal support obligations did not. So by asking for a $50,000 lump-sum spousal award – which was the same amount she would have received in equalization were it not for the husband’s bankruptcy – the wife could enforce the award even after the husband was discharged. In other words, the motions judge simply converted the mother’s now-unenforceable equalization claim into an enforceable entitlement to lump sum spousal support.

The husband objected, and brought an appeal to the Court of Appeal, claiming that the judge’s award was tantamount to re-distributing the husband’s assets in favour of the wife and in preference to his other creditors.

The Appeal Court agreed with the husband. It found that when it came time to make the support award, the motion judge had failed to consider: 1) the father’s status as an undischarged bankrupt; 2) the effect of a lump sum spousal support award on the father’s ongoing bankruptcy, and 3) the implications of the father’s eventual discharge from bankruptcy on the parties’ financial circumstances and assets.

The lump-sum award – not coincidentally in the same amount as the equalization payment would have been – had been made without regard to the father’s impending bankruptcy, and amounted to an end-run around the normal operation of the bankruptcy legislation. Since this was impermissible, the motion judge’s earlier ruling was overturned.

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 ONCA 843 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Self-Reporting Your Income: How to Go Wrong

Canada Revenue Agency Warning Sign, A Canadian road warning sign with words Canada Revenue Agency with a sky background

Self-Reporting Your Income: How to Go Wrong

If you are a separated or divorced parent and also self-employed, then you likely know of your legal obligation to report your income so that any child support obligations (or entitlements) can be determined under the federal Child Support Guidelines (the “Guidelines”).

This can be more complicated than you may think. Because unlike those who receive a straight salary, if you earn your living through self-employment, or if you are paid through a corporation, then the calculation of your income can fluctuate greatly from year to year. It may also require some crystal ball-gazing, and be driven by numerous esoteric variables and discretionary business-decisions.

Not surprisingly, when family disputes involving one or more self-employed parents end up in court, the judge is authorized to closely scrutinize your self-reported income to fix the true amount. As part of this exercise, the Guidelines allow the judge to “add back” or impute income to your declared income in certain cases. These include situations where you:

• Are intentionally unemployed or under-employed;

• Divert income;

• Unreasonably under-use property that could be used to generate income;

• Fail to produce income information when legally required to do so;

• Deduct an unreasonably high amount of expenses from income (and this is not solely governed by whether the deduction is permitted under the Income Tax Act); and

• The beneficiary under a trust.
(The Guidelines also allow the court to impute income to you in certain defined tax scenarios).

Needless to say, there is a lot of gray-area in that list; for example, in a small corporation or single-person business you may have a lot of leeway in determining the amount of expenses that you deduct from income. Essentially, it is an “executive decision” in the colloquial sense, highly dependent on factors unique to your specific self-employment arrangement, and may vary from year to year as business needs and economic factors dictate.

In fact, the over-generous deduction of business expenses is the area where most self-employed parents trip up in reporting their total income for child support purposes. Here are just a few of the ways that you can go wrong in reporting income:

• By trying to deduct business expenses for what are actually recreational purposes. For example, in a case called Dunham v. Dunham the court added back 100 percent of the amount that the self-employed spouse had tried to claim for gasoline and oil expenses relating to a snowmobile and an airplane.

• By being over-generous in deducting expenses for items that have a dual purpose. For example, in A. (A.) v. A. (C.) the court disallowed certain capital cost allowance deduction in relation to a $60,000 truck and a computer, because they were used by the father (who was a private investigator) for both personal and business-related purposes).

• By hiding behind your accounting professional in justification of various decisions made in coming up with an income amount;

Note the following:

• Just because the deduction is allowed by the Canada Revenue Agency (CRA) does not mean it will be allowed for Guideline support and income-determination purposes.

• On the flip-side, if the deduction clearly disallowed by the CRA, then it will also be disallowed under the Guidelines when calculating income.

• The fact that a deduction may have survived a CRA audit does not mean that for child support purposes the deductions will not be added back by the court if warranted. Family courts have a great deal of discretion in this area.

For the full text of the decisions, see:

Dunham v. Dunham, 1998 CarswellOnt 4571 (Ont. Gen. Div.)

A. (A.) v. A. (C.), 2012 CarswellBC 3001 (B.C. S.C.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offerig pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

care

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

Consider this scenario: Two spouses divorce after 20 years of marriage and three children. They enter into a separation agreement to establish the combined child and spousal support the husband should pay, and agree that a home they purchase after separation would be taken in the wife’s name alone.

However, in 2005 they decide to enter into an Amending Agreement: Among other things, it adjusts the support amount to reflect the husband’s declared income of $80,000 per year, and changes the split on the home’s ownership to 50-50 for each of them (with the title documents amended accordingly).

Years later, the wife later finds out that the husband’s income was not $80.000 as he claimed, but rather closer to $345,000. The vast majority of that income came from various contracting / home building businesses that the husband owned, which generated significant unreported income about which the Canada Revenue Agency was unaware.

The wife then asks the court to set aside the Amending Agreement as unconscionable, and to declare her the sole owner of the property. This is based mainly on the husband’s untruthfulness about his true income. In response, the husband complains that the wife should have raised her objections sooner in their proceedings, and that she should be barred from raising them now.

The questions for the court was this: Should the Amending Agreement be aside in these circumstances?
Not surprisingly, two different courts’ answer was a resounding “yes”. But what was interesting is that both courts concluded that the husband had a duty to act with “scrupulous care for [the wife’s] welfare and interests” in the circumstances.

The matter first came before an applications judge who found that the wife would not have signed the second agreement had she known of the husband’s true income. That judge set aside the agreement and declared her to be the sole owner of the home.

In doing so, the judge found there had been inequality between the parties and that the husband was preying on the wife, especially in light of her economic vulnerability. As such, he had a duty to act with her best interests in mind, and – as the later Appeal Court confirmed – his “failure to disclose that his income was roughly four times that which he represented it to be was a serious breach of that duty.”

There was no doubt on the evidence that the husband misrepresented his income as being $80,000, when in fact he had significant additional undeclared income. The wife did not find out about it until long after she began the court proceedings, so it did not lie in the father’s mouth to she should have raised it earlier in the proceedings.

Also, the Court of Appeal found no fault in the prior judge’s assessment that the Amending Agreement was unconscionable in law, based on both the husband’s non-disclosure of significant income, as well as the manner in which the parties purported to deal with their real estate. Although the concept of “unconscionability” in the context of domestic contracts is not the same as for regular contracts, one principle remains the same: where there are circumstances of oppression, pressure, or other vulnerabilities, and where there is evidence that one party exploits those vulnerabilities during the negotiation process to the point that the domestic contract deviates substantially from what the relevant family legislation would otherwise dictate, the contract need not be enforced.
The Amending Agreement was therefore set aside and the wife was declared the sole owner of the property.

For the full text of the decision, see:

Tadayon v. Mohtashami, 2015 ONCA 777 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Spousal Support Advisory Guidelines Are Now an Even Handier Tool

tool

Spousal Support Advisory Guidelines Are Now an Even Handier Tool

We have written before about the role of the Spousal Support Advisory Guidelines (SSAG), which are designed to provide guidance and inject some certainty into the court’s task of setting spousal support levels between former spouses in certain prescribed scenarios.

But since they are only “advisory” (rather than mandatory) in nature, questions sometimes arise as to when courts should use them, when they can or should deviate from them, and under what support-adjudicating circumstances can they be referred to by courts in the first place.

Assuming at the outset that the facts of a case potentially fall within the purview of scenarios that the SSAGs were drafted to cover, the answer to the last question – broadly stated – is “anytime”.

This was not always the case under Ontario law. When first introduced in draft form in 2008, they were arguably designed to apply only to initial (first-time) spousal support applications, but not to review situations were the spouses returned to court subsequently to have an existing order varied. This conclusion was fortified by a 2008 ruling by the Ontario Court of Appeal in a case called Fisher v. Fisher (And it should be noted that the Court drew these conclusions about the non-applicability of the SSAGs despite the fact that the issue was not really germane to the case before it).

Relying on that Court of Appeal ruling in Fisher, subsequent courts had been reluctant to apply the SSAGs to anything other than initial applications. However, that strict stance was loosened over the years, most notably in 2014 decision – ironically also by the Court of Appeal – in which the SSAG’s purview was expanded to review applications as well.

In Gray v. Gray, the Appeal Court was asked to consider whether an earlier trial judge had made a reversible error in failing to consider the SSAGs while deciding the wife’s review application. In doing so, it observed that Fisher had been decided at a time when the SSAGs were not yet in finalized form. Since then there had been a final version released which expressly addressed certain variation scenarios; there was also a body of case law that involved SSAG-guided review.

(For example, in one such case called Abernathy v. Peacock, the recipient mother had been initially awarded considerably less spousal support than that to which she was otherwise entitled, in order to leave the paying father more money with which to pay child support. When her spousal support entitlements later came up for review, the court concluded that the SSAGs were an appropriate benchmark, given that they were being used to adjust support amounts that may very well have been awarded in the first place).

Collectively, on both initial applications and review scenarios it was clear to the Appeal Court in Gray that the SSAGs were to be considered a “valuable tool for courts to use in assessing a reasonable amount of spousal support”, and that they should be “routinely consulted”.

Although the Court thus confirmed the SSAG’s applicability to review applications, it cautioned that they should not be applied “wholesale”. Rather – and since they still remain only advisory in nature – family courts were to first consider complicating factors such as situations where one or both divorced spouses have second families, or where the paying spouse has enjoyed a post-separation increase in income. In such cases, according to the Ontario Court of Appeal, a court “must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.”

What all of this means is that spouses who are contemplating separation and divorce can look to the SSAGs as a trustworthy starting point or “baseline” for discussions around spousal support amounts – no matter what the stage of the proceedings between them. Although the SSAG-set amounts are not carved in stone, they can provide a little bit of certainty to a sometimes-uncertain process.

For the full text of the decisions, see:

Fisher v. Fisher, 2008 ONCA 11 (CanLII)

Abernethy v. Peacock, 2012 ONCJ 145, [2012] O. J. No. 1203; 2012 ONCJ 145 (CanLII) add’l reasons 2013 ONSC 2045 (CanLII)

Gray v. Gray, 2014 ONCA 659 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com