Spousal Support Advisory Guidelines – Are They a Package Deal?
In a decision called Mason v. Mason, the Ontario Court of Appeal considered a narrow legal question: Is a judge entitled to use the Spousal Support Advisory (SSAGs) for partial purposes, but disregard it for others? And if the judge departs from using the SSAGs, must he or she give specific reasons for doing so?
The Masons were a husband and wife who had decided to divorce after a marriage spanning almost 20 years. During their relationship they had worked together to build a successful business, and after separating were able to settle all issues except the amount of spousal support that the husband should pay the wife in the circumstances. They went to court to have a trial judge determine that amount for them.
In his reasons, he had made a finding that the husband’s annual income was about $400,000, including certain corporate income that came from the husband buying out the wife from the business. He determined the wife’s income to be about $82,500. After consulting the SSAGs to determine the proper range of support, he ordered the husband to pay about $9,000 per month.
The former spouses appealed, each claiming that the trial judge had incorrectly approached the income determinations, and had mis-used the SSAGs in doing so. They took issue with the income that had been attributed to them and with the resulting amount of the support award.
As many of you will know, for Canadian judges who are asked to determine spousal support upon the dissolution of marital relationship, the SSAGs set out a pre-determined – but non-mandatory – set of calculations. As the name suggests, they are “advisory” in nature.
But in this case the Appeal Court found that the trial judge had used them incorrectly: In the process of reviewing and setting the parties’ respective income, he had used the SSAGs to set the range of appropriate support, but then had abandoned using them when it came time to make the actual income determination. The Appeal Court said:
As the trial judge was using the SSAGs to determine the amount of spousal support, it was incumbent on him to either rely on the Guideline provisions for determining income — or to explain why they should not apply.
It’s a thinly-sliced distinction, but means that despite being an advisory guide, once the trial judge had referred to the SSAGs in determining the spousal support range, he was required to at least explain why he considered them inapplicable in the Masons’ case.
With that said, the Appeal Court reiterated that the SSAGs “cannot be used as a software tool or formula” whereby the judge merely plugs in the income figures, obtains a range, and chooses the midpoint. They must be “considered in context and applied in their entirety”. The Appeal Court also pointed out that the trial judge had given too few reasons on how the specifics of the various dollar-amounts were calculated.
In the end, having identified errors in the trial judge’s income calculations for both parties, the Appeal Court declined to send the matter back to trial, and opted instead to make the income adjustments itself. It adjusted the husband’s income downward by about $200,000, and the wife’s upward by about $20,000. The spousal support component, payable by the husband to the wife, was adjusted to $1,500 per month.
For the full text of the decision, see
Mason v. Mason, 132 O.R. (3d) 641, 2016 ONCA 725 (CanLII)