In July of 2008, the Canadian federal government launched the Spousal Support Advisory Guidelines, which are non-mandatory formula-based guides to the appropriate amount of spousal support that is merited in various domestic circumstances existing between separating and divorcing spouses. The use of these Guidelines – while still optional – was endorsed by the Ontario Court of Appeal in 2008.
So, what do separating and divorcing spouses in Ontario need to know about them?
• The Guidelines are a good starting point. As mentioned above, the Guidelines remain an optional tool for use by separating couples, their lawyers and (where the matter goes to court) by judges. But they are especially useful for encouraging parties to avoid litigation, as they provide a good starting-point for discussion and negotiation. And while they are routinely used by courts hearing spousal support disputes, judges are still entitled to deviate from the stipulated amounts where circumstances warrant.
• The Guidelines address different permutations. The Guidelines have been drafted to accommodate a wide range of living and custodial arrangements; for example its formula can take into account whether the spouses have children or not, and if they do, whether the paying spouse has custody of them and/or is paying child support for them. It can also makes allowances for situations involving shared custody, adult children, children with special needs, and step-parent situations.
• The Guidelines are predictable. Essentially, the Guidelines outline various policy considerations that form the underpinnings of how support is awarded in Canada, and then allow for specific values to be reached using actual financial information (such as each spouse’s income). These values are essentially “plugged in” to a formula, with the result that a range of spouse support amounts are generated.
• They Guidelines are still flexible. Not only are the Guidelines optional, but they also incorporate built-in flexibility in the form of “ranges” of support for each given scenario. This means that the interested parties or the courts can set support amounts at the upper or lower end of the range, as the circumstances dictate. Also, the support might be time-limited, or may be adjusted at negotiation time to reflect a significant post-separation increase in income by either spouse.
• There are exceptions. The Child Support Advisory Guidelines specifically include and descript certain defined exceptions. For example, they can take into account any prior support being paid, i.e. where paying spouse is already paying support in connection with an earlier marriage.
Overall, the Spousal Support Advisory Guidelines have certainly been a welcome addition to the Ontario family law system, in that they introduce the certainty of a near-formulaic approach to the process of determining spousal support obligations. However, this does not mean they are the definitive answer to every situation; getting solid legal advice is still a necessary part of the process.
For a link to the Spousal Support Advisory Guidelines in PDF form, see:
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.