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)
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