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Spousal Support Advisory Guidelines:
A Draft Proposal

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The draft spousal support advisory guidelines proposed in this document are intended to bring more certainty and predictability to the determination of spousal support under the federal Divorce Act. This Draft Proposal for advisory guidelines is the product of more than three years of work, elaborated upon in Chapter 2. As its title indicates, this is truly a draft that invites application, experimentation, discussion and feedback, with a view to further revisions.

These advisory guidelines are very different from the Federal Child Support Guidelines. They are not being legislated by the federal government. They are informal guidelines that will operate on an advisory basis only. The proposed advisory guidelines will be used to determine the amount and duration of spousal support within the existing legal framework of the Divorce Act and the judicial decisions interpreting its provisions. The guidelines are not legally binding and their adoption and use will be voluntary. They are intended as a practical tool to assist spouses, lawyers, mediators and judges in typical cases. The basic formulas, variations and exceptions are intended to build upon current practice, reflecting best practices and emerging trends across the country.

The proposed advisory guidelines do not deal with entitlement, just amount and duration once entitlement has been found. The advisory guidelines do not deal with the effect of a prior agreement on spousal support. The advisory guidelines have been developed specifically under the federal Divorce Act. Provincial/territorial laws differ in important respects and any use of these guidelines in the provincial/territorial context would have to take account of these distinctive statutes, especially on matters of entitlement and agreements.

An overview of the structure of the proposed scheme is found in Chapter 4.

There are two basic formulas in the proposal: the without child support formula and the with child support formula. The dividing line between the two is the absence or presence of a dependent child or children of the marriage, and a concurrent child support obligation, at the time spousal support is determined. Both formulas use income sharing as the method for determining the amount of spousal support, not budgets. The formulas produce ranges for the amount and duration of support, not just a single number. The precise number chosen within that range will be a matter for negotiation or adjudication, depending upon the facts of a particular case.

The without child support formula is built around two crucial factors: the gross income difference between the spouses and the length of the marriage. Both the amount and the duration of support increase incrementally with the length of the marriage, as can be seen in the summary box below. The idea that explains this formula is merger over time: as a marriage lengthens, spouses more deeply merge their economic and non-economic lives, with each spouse making countless decisions to mould his or her skills, behaviours and finances around those of the other spouse. The gross income difference measures their differential loss of the marital standard of living at the end of the marriage. The formulas for both amount and duration reflect the idea that the longer the marriage, the more the lower income spouse should be protected against such a differential loss. Merger over time captures both the compensatory and non-compensatory spousal support objectives that have been recognized by our law since Moge and Bracklow.

The Without Child Support Formula

Amount ranges from 1.5 to 2 percent of the difference between the spouses’ gross incomes (the gross income difference) for each year of marriage (or, more precisely, years of cohabitation), up to a maximum of 50 percent. The range remains fixed for marriages 25 years or longer at 37.5 to 50 percent of income difference.

Duration ranges from .5 to 1 year for each year of marriage. However, support will be indefinite if the marriage is 20 years or longer in duration or, if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more (the rule of 65).

Gross income in this formula uses the same definition of income as under the Federal Child Support Guidelines, sometimes called Guidelines income. It is important to note that the percentages are not percentages of the payor’s income, but percentages of the gross income difference between the spouses.

Chapter 5 contains examples of the application of the without child support formula and the ranges it produces for marriages of different lengths and incomes. A number of factors will affect the precise amount or duration within those ranges: a strong compensatory claim, the recipient’s needs, property division, the needs and limited ability to pay on the part of the payor spouse, and self-sufficiency incentives.

Restructuring allows the amount and duration under the without child support formula to be traded off against each other, so long as the overall value of the restructured award remains within the total or global amounts generated by the formula when amount and duration are combined. Restructuring can be used in at least three different ways: (i) to front-end load awards by increasing the amount beyond the formula’s range and shortening duration; (ii) to extend duration beyond the formula’s range by lowering the monthly amount; or (iii) to formulate a lump sum by combining amount and duration.

Any formula, even with restructuring, will have its limits and there will always be exceptional cases. Because the guidelines are only advisory, departures are always possible on a case-by-case basis where the formula outcomes are inappropriate. Under both this formula and the with child support formula, the proposed guidelines do offer a short list of exceptions, intended to identify common categories of departures: a compensatory exception in short relationships, illness and disability, debt payment, prior support obligations, and compelling financial circumstances in the interim period.

Cases with dependent children and concurrent child support obligations require a different formula, the with child support formula. These cases raise different considerations: priority must be given to child support; there is usually reduced ability to pay; and particular tax and benefit issues arise. The rationale for spousal support is also different. Where there are dependent children, the primary rationale is compensatory, as both Moge and Bracklow made clear. What drives support is not the length of the marriage, or marital interdependency, or merger over time, but the presence of dependent children and the need to provide care and support for those children. This parental partnership rationale looks at not just past loss, but also at the continuing economic disadvantage that flows from present and future child care responsibilities, anchored in s. 15.2(6)(b) of the Divorce Act.

There are three important differences between the without child support formula and the with child support formula. First, the with child support formula uses the net incomes of the spouses, not their gross incomes. Second, this formula divides the pool of combined net incomes between the two spouses, not the gross income difference. Third, the upper and lower percentage limits of net income division in the with child support formula do not change with the length of the marriage.

Set out below is a summary version of the basic with child support formula, used to determine the amount of spousal support to be paid where the payor spouse pays both child and spousal support to the lower income recipient spouse who is also the parent with custody or primary care of the children.

The Basic With Child Support Formula

(1) Determine the individual net disposable income (INDI) of each spouse:

  • Guidelines Income minus Child Support minus Taxes and Deductions = Payor’s INDI
  • Guidelines Income minus Notional Child Support minus Taxes and Deductions Plus Government Benefits and Credits = Recipient’s INDI

(2) Add together the individual net disposable incomes. Determine the range of spousal support amounts that would be required to leave the lower income recipient spouse with between 40 and 46 percent of the combined INDI.

Net income computations like these will usually require computer software. Basic to this formula is the concept of individual net disposable income, an attempt to isolate a pool of net disposable income available after adjustment for each spouse’s child support obligations. This is done by deducting or backing out their respective contributions to child support. The details of these calculations are set out in Chapter 6, along with several examples.

Duration under this basic with child support formula also reflects the underlying parental partnership rationale. Initial orders would be indefinite in form, subject to the usual process of review or variation. There would, however, be outside time limits on the cumulative duration of spousal support, which would structure the process of review and variation. There are two tests for duration and whichever produces the longer duration will apply:

  • First is the longer-marriage test, which is modelled on the maximum duration under the without child support formula, i.e. one year of support for every year of marriage, and which will likely govern for most marriages of ten years or more.
  • The second test is the shorter-marriage test, which sets the outside time limit for support at the time that the last or youngest child finishes high school and which will typically apply for marriages under ten years. In these shorter-marriage cases, there will likely be review conditions attached. Relatively few cases will reach this outside time limit and those that do will likely involve reduced amounts of top-up support by that time.

Shared and split custody situations require a slight variation in the computation of individual net disposable income, as the backing out of child support obligations is a bit more complicated. There is also a different formula for cases where spousal support is paid by the custodial parent. Under this formula, the spouses’ Guidelines incomes are reduced by the grossed-up amount of child support (actual or notional) and then the without child support formula is applied to determine amount and duration.

Restructuring has less scope for application under the with child support formula, but remains possible in some situations. The list of exceptions is the same as under the previous formula.

As with the Federal Child Support Guidelines, there is a ceiling and a floor that sets the range of incomes to which the formulas apply. The ceiling is the income level for the payor spouse above which any formula gives way to discretion, set here at a gross annual income for the payor of $350,000. The floor is the income level for the payor below which no support is to be paid, here set at $20,000. To avoid a cliff effect, there is an exception for cases where the payor spouse’s gross income is more than $20,000 but less than $30,000, where spousal support may not be awarded or may be reduced below the low end of the range. An additional exception is also necessary, to allow an award of spousal support below the income floor in particular cases.

The advisory guidelines are intended to apply to interim support, a setting where the formulas can offer a quick, easily calculated range of amounts. There is an exception for compelling financial circumstances in the interim period, to recognize that it is not always possible to adjust family finances quickly, especially for housing expenses and debt payments.

Quebec has different guidelines for determining child support, which have an impact on spousal support determinations. The application of the advisory guidelines to Divorce Act cases in Quebec raises special issues that are dealt with in Chapter 9.

The formulas are intended to apply to initial orders and to the negotiation of initial agreements. Given the uncertain state of the current law, it is not possible to make the advisory guidelines apply to the full range of issues that can arise on variation and review. The advisory guidelines can be applied on applications to reduce spousal support because of changes in income, for example, when the payor spouse’s income goes down or the recipient spouse’s income goes up (or ought to have gone up). In some cases, one spouse may wish to apply to vary to cross over between the two formulas, mostly in longer marriages where the without child support formula produces higher ranges, once the children are no longer dependent.

More difficult issues arise where the payor’s post-separation income increases or the recipient’s income is reduced after separation. The most the formula can do is to establish an upper limit upon any increase in spousal support in such cases. At the present time, no formula can be constructed to resolve issues around the recipient spouse’s remarriage or re-partnering, or the second family cases. At some later stage, it may be possible to find formulaic solutions to these categories of variation and review cases.