Spousal Support Advisory Guidelines:
A Draft
Proposal
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Advisory guidelines: Guidelines, for the determination of
support, that are not legislated or mandatory but non-legislated, informal
and voluntary in nature, sometimes called “true guidelines” to distinguish
them from the Federal Child Support Guidelines, which are
legislated and mandatory. Generally a shorthand reference to the spousal
support advisory guidelines proposed in this document.
Agreement: An agreement or contract between the spouses, usually
in writing, setting out their respective rights and obligations during
their marriage or upon marriage breakdown. The agreement may be negotiated
by the spouses on their own, with their counsel, or through mediation. For
the purposes of these Advisory Guidelines, the agreement would
include terms affecting spousal support or child support or both, as well
as terms concerning custody, access, parenting and division of family
property. Usually the agreement will be in the form of a separation
agreement. The agreement may or may not be incorporated into a “consent
order.” (See also consent order.)
Ceiling: Under the Advisory Guidelines, to determine
spousal support, the income level for the payor spouse above which the
income-sharing formula no longer applies and any additional level of
support is determined on a discretionary basis.
Child of the marriage: Under the Divorce Act, a child of
the spouses who, at the material time, is under the age of majority, or is
the age of majority or over but unable by reason of illness, disability,
education or other cause, to support himself or herself. Included is a
step-child or other child, for whom one parent or both stand in the place
of a parent. Sometimes the term dependent child is used to describe
a “child of the marriage.”
Child support: An amount of money paid by one parent to the
other for the support of a child. Under the Federal Child Support
Guidelines, there is a presumption that this amount consists of the
“table amount” of support, determined by the child support tables, plus
any contribution to section 7 “special or extraordinary expenses”
such as child care, some education and medical expenses, or certain
extracurricular expenses. (See also table amount of child
support and special or extraordinary expenses.)
Computer software: Programs intended to assist family law
lawyers, judges, mediators and others to calculate child support and
spousal support. In Canada three software programs are currently
available: DIVORCEmate, ChildView and, in Quebec, Aliform.
Compensatory support: Spousal support intended to compensate
spouses for the economic consequences of the marriage. Compensatory
support is typically awarded to recognize the economic losses one spouse
has incurred as a result of the marriage and marital roles such as the
loss of earning capacity, career development, pension benefits, etc.
because of a decision to withdraw from the labour force for family
reasons. Compensatory support may also be awarded, however, to compensate
one spouse for economic benefits conferred on the other spouse during the
marriage such as financial support for professional training. Compensatory
support also includes spousal support intended to recognize the economic
impact of post-divorce child-care responsibilities on a custodial parent,
most commonly limitations on employment. (See also
non-compensatory support.)
Consent order: An order made by the court based upon the
agreement of the spouses. The agreement may take the form of a separation
agreement, minutes of settlement, or an agreement stated on the record in
court.
Corollary relief: The technical term used by the federal
Divorce Act to describe orders for custody and access, child
support and spousal support.
Crossover: Under the Advisory Guidelines, refers to the
situation where one spouse applies to vary spousal support after child
support has ceased and the with child support formula is no longer
applicable, to bring spousal support under the without child
support formula.
Divorce: The proceeding in which legally married spouses are
divorced under the federal Divorce Act. Often, the term is used to
describe the divorce judgment granted at the same time that corollary
relief is granted. The divorce takes legal effect 31 days after the
divorce judgment. (See also corollary relief.)
Duration: When spousal support is paid on a monthly basis, the
length of time for which spousal support is to be paid. Duration may be
indefinite or time-limited. Duration may be changed upon subsequent review
or variation. (See also indefinite and
time-limited.)
Durational factor: Used in the without child support
formula under the Advisory Guidelines, to determine the percentage
of income to be shared, based upon the length of the marriage. The
durational factor is 1.5 to 2 percent of the gross income difference
for each year included in the length of marriage. (See also
length of the marriage.)
Entitlement: This is the threshold question in spousal support
of whether a spouse has any claim to spousal support at all. After
entitlement has been established, issues of amount and duration can be
addressed. The issue of entitlement can arise in any context where spousal
support is in issue—interim support, initial orders or agreements for
support, or reviews or variations of existing support orders.
Exception: Under the Advisory Guidelines, a recognized
category of commonly recurring facts or circumstances that may justify a
departure from the amount or duration of spousal support that would
otherwise be determined under the formulas.
Family net disposable income: A measure of the net disposable
income of the recipient spouse, which includes both spousal and child
support received by that spouse. It measures the net disposable income of
the whole family, including that of the spouse and the children, available
to meet their needs. For the payor spouse, his or her net disposable
income is the same whether described as family net disposable income or
individual net disposable income, as both child and spousal support paid
are always deducted. (See also net disposable income and
individual net disposable income.)
Federal Child Support Guidelines: Regulations under the federal
Divorce Act setting out the rules and tables that determine how
much child support a spouse or parent must pay. Most provinces and
territories have similar child support guidelines under their family laws,
except for Alberta. Quebec has a different scheme of child support
guidelines, which applies to determine child support for residents of
Quebec.
Floor: Under the Advisory Guidelines, the income level
for the payor spouse below which the formulas do not apply.
Formula: Under the Advisory Guidelines, the specific
method of calculating the amount and duration of spousal support for a
category of cases, including the percentages of income to be shared.
(See also with child support formula and
without child support formula.)
Global amount: Under the Advisory Guidelines, the total
dollar amount of spousal support payable under the formula when amount is
multiplied by duration—the monthly amount can be multiplied by the number
of months of duration for which it is paid—to produce this global amount.
No adjustment is made in this raw calculation for any discount, present
value or tax adjustment.
Government benefits and refundable credits: A category of income
that includes the federal Child Tax Benefit, the National Child Benefit,
the GST credit, the refundable medical credit and various provincial
benefit and credit schemes.
Gross income difference: Under the Advisory Guidelines,
the difference between the gross or Guidelines incomes of the spouses,
which forms the basis for the percentage division under the
“without child support” formula. (See also Guidelines
income.)
Grossed-up amount of child support: Child support is not tax
deductible for the payor parent, which means that child support is a “net”
amount, paid out of the parent’s after-tax income. In certain cases where
gross income is used in the advisory guidelines, it is necessary to gross
up the amount of child support, e.g. under the custodial payor
formula or the exception for prior support obligations. To gross up child
support, the parent’s marginal tax rate is used to calculate a before-tax
or gross amount. Software programs can be used to assist in this
calculation.
Guidelines income: A measure of gross income, as defined in the
Federal Child Support Guidelines, including the adjustments found
in Schedule III to those Guidelines.
Income sharing: A formulaic method used to determine the amount
of support to be paid, either spousal support or child support, based upon
the incomes of the parents or spouses, rather than expense budgets, budget
deficits, or some other method.
Indefinite: Spousal support that has no limit on its duration
but is subject to review or variation. Indefinite support does not
necessarily mean permanent support, as the amount may be varied over time
and the support obligation may even be terminated. Under the Advisory
Guidelines, there are two tests for indefinite support: where the
length of the marriage is 20 years or longer, or where the rule of 65
applies. (See also rule of 65.)
Individual net disposable income (INDI): A spouse’s
individual net disposable income reflects the net disposable income
available to the spouse after deducting his or her contributions to child
support. For the recipient spouse, individual net disposable income will
be the net disposable income, including any spousal support received,
after deducting the payor’s child support paid as well as the recipient’s
notional table amount of child support plus any contributions by the
recipient to special or extraordinary expenses for the child or children.
For the payor spouse, his or her individual net disposable income will be
the net disposable income after payment of both child support and spousal
support. (See also family net disposable income, net
disposable income, notional table amount of child support, and
special or extraordinary expenses.)
Initial order: The order for custody, child support or spousal
support made at the time of the divorce or, in some cases, the first order
made thereafter. Sometimes referred to as an “original order” and to be
contrasted with subsequent orders made on variation or review. Not to be
confused with interim orders. (See also interim support,
variation and review.)
Interim support: An order for child support or spousal support
or both, made after a divorce proceeding has been commenced, based upon
limited evidence and intended to operate on a temporary basis until the
divorce and initial order for corollary relief. An interim support order
can be revisited and revised at any time, up to and including the divorce
and initial order for corollary relief. (See also corollary relief,
divorce and initial order.)
Length of the marriage: Under the Advisory Guidelines,
the total period of time the spouses have cohabited, including any periods
of pre-marital cohabitation and ending at the time of separation.
Lump sum spousal support: Spousal support can be paid on a
periodic basis, e.g., monthly amounts, or it can be paid in a lump sum,
usually just one or a few payments. Lump sum payments are not tax
deductible for the payor and are not treated as taxable income for the
recipient.
Net disposable income: An after-tax measure of income, after
inclusion and deduction of the amounts more fully described in Chapter 6.
The starting point is Guidelines income, to which government benefits and
refundable credits are added and from which income taxes and other
deductions are then subtracted. For the payor spouse, child and spousal
support paid is deducted. For the recipient spouse, spousal support will
be included, but child support received may or may not be included,
depending upon whether the measure is family net disposable income
or individual net disposable income. (See also family net
disposable income, government benefits and refundable credits,
Guidelines income, and individual net disposable
income.)
Non-compensatory support: Spousal support based on need and
dependency, apart from any compensatory considerations. In its 1999
decision in the case of Bracklow, the Supreme Court of Canada held
that the spousal support objectives of the Divorce Act were not
exclusively compensatory, but also encompassed non-compensatory purposes.
Notional table amount of child support: The table amount of
child support that a spouse would pay under the Child Support
Guidelines, based upon the spouse’s income, even though that amount is
not actually being paid to the other spouse. The notional table amount is
used as a proxy or adjustment in the with child support formula to
reflect the spouse’s direct spending upon a child as a custodial parent.
(See also table amount of child support.)
Prior support obligation: An obligation to pay child or spousal
support for a child or spouse from a prior relationship, when determining
child or spousal support to be paid upon the breakdown of a subsequent
marriage. Prior support obligations are an exception under the
formulas.
Property division: Each province and territory has its own
statute that provides for the division of family or marital or matrimonial
property between spouses upon separation or divorce. Court orders and
agreements thus often deal with property division, as well as custody and
access, child support and spousal support. Provincial/territorial laws
vary in their details. Property to be divided will typically include the
family home, its contents, pensions, motor vehicles, investments, bank
accounts, etc. Typically, debts will also be considered as part of the
property division.
Provincial/territorial family law: Under the Constitution, the
federal government has legislative responsibility for divorce, reflected
in the federal Divorce Act. The Divorce Act deals with
custody, child support and spousal support for divorcing spouses. All
other family law matters fall under the legislative responsibility of the
provinces and territories. Provincial/territorial family law is set out in
the statutes of each province or territory and the titles of those
statutes vary from province to province, e.g. in B.C., the Family
Relations Act or in Ontario, the Family Law Act and the
Children’s Law Reform Act. These provincial/territorial family laws
deal with custody and support issues for separated but not divorced
married spouses, as well as cohabiting partners and unmarried parents. The
division of family property in all cases, including divorcing spouses, is
a matter for provincial/territorial family law.
Quantum: A Latin term, used by lawyers and judges, which means
the amount of support to be paid, as opposed to the duration of that
support. “Quantum” thus usually refers to the monthly amount of spousal
support.
Ranges: Under the Advisory Guidelines, the upper and
lower limits for the amount of spousal support, or the duration of spousal
support, as determined by the appropriate formula. The formulas generate
ranges for amount and duration, rather than precise numbers as under the
Federal Child Support Guidelines.
Restructuring: Under the Advisory Guidelines, the
trading-off of amount against duration to restructure the outcomes
generated by the formulas. Restructuring may be used in one of three ways:
(1) to increase the amount of spousal support and shorten duration; (2) to
extend duration and reduce the monthly amount; or (3) to formulate a lump
sum by multiplying amount by duration. In restructuring, the global amount
of support remains the same. (See also global amount and
lump sum spousal support.)
Review: A proceeding, provided for by the terms of an order for
support that involves the return of a support issue to the court for
review, without the need for either spouse to prove a material change of
circumstances. A review is thus different from a variation. A review term
in a support order will usually direct the timing of the future review. It
may attach conditions to be satisfied by one or both of the spouses prior
to the scheduled review. It may also direct the issues to be determined
and the evidence to be provided at the review. (See also
variation.)
Rule of 65: Under the Advisory Guidelines, one of the
tests for indefinite spousal support under the without child
support formula, calculated by adding together the age of the support
recipient at the time of separation and the length of the marriage in
years. (See also length of marriage.)
Shared custody: Defined in section 9 of the Federal
Child Support Guidelines as a situation where each spouse “exercises a
right of access to, or has physical custody of, a child [of the marriage]
for not less than 40 per cent of the time over the course of a year.”
Special or extraordinary expenses: Expenses for children listed
in section 7 of the Federal Child Support Guidelines, to which
both parents will generally contribute based upon their respective
incomes. Included in these expenses are: child care expenses;
child-related medical and dental insurance premiums; certain
health-related expenses; extraordinary expenses for primary or secondary
education or specific educational programs; expenses for post-secondary
education; or extraordinary expenses for extracurricular activities. The
presumptive amount of child support to be paid under the Federal Child
Support Guidelines consists of the table amount of child support plus
the payor’s contribution to any s. 7 expenses.
Split custody: Defined in section 8 of the Federal Child
Support Guidelines as a situation “where each spouse has custody of
one or more children” of the marriage.
Spouse: Under the Divorce Act, spouse means a legally
married spouse. Generally, the term “spouse” also includes a person who is
a former spouse. At the time of writing, the Divorce Act definition
of spouse had not been amended to include spouses in same-sex marriages
but the term will encompass them if such an amendment is made. Under
provincial/territorial family law, the definition of “spouse” varies, but
generally has been extended to include certain “common law” or cohabiting
couples who are not legally married. Provincial/territorial law may also
extend support obligations to certain relationships other than spousal
relationships, such as civil unions or same-sex partnerships.
Table amount of child support: The basic amount of child support
that a payor parent is required to pay under the Federal Child Support
Guidelines, based upon the child support tables. The table amount is
determined by the payor’s Guidelines income, the number of children
and the appropriate province/territory, usually the province/territory in
which the payor spouse resides.
Time limit: Sets a specified or limited period of time during
which the monthly amount of support is to be paid. (See also
duration.)
Variation: An application by a spouse, after an initial order
has been made, to vary or change the terms of a previous order, including
the terms relating to child or spousal support. Variation applications are
governed by section 17 of the federal Divorce Act. There may
be a number of variation orders granted over time between spouses or
former spouses. In order to obtain a variation, the spouse will have to
establish a material change in circumstances since the making of the most
recent previous order.
With child support formula: The formula under these
Advisory Guidelines for calculating amount and duration of spousal
support that applies in cases where there are dependent children and hence
where there is a concurrent child support obligation to a child or
children of the marriage. (See also formula, child of the
marriage and without child support formula.)
Without child support formula: The formula under these
Advisory Guidelines that applies in cases where there are no
dependent children and hence where there is no concurrent child support
obligation to a child or children of the marriage. This formula applies
not only to marriages where there were no children of the marriage, but
also to marriages where there were children, but the children are no
longer dependent. (See also formula, child of the
marriage, and with child support formula.)
