Difference between revisions of "The Spousal Support Advisory Guidelines"

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}

| link = the [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html Advisory Guidelines]

}}The [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines] is an academic paper released by the federal Department of Justice in July 2008. It is not a law and is not expected to become a law.  

The Advisory Guidelines has both floors and ceilings: where a payor's income is below $20,000, no spousal support will be payable; and, where a payor's income exceeds $350,000, the payor should pay at the amount for incomes of $350,000. The payor's income above that ceiling will be taken into <span class="noglossary">account</span> only at the discretion of the court.

On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the Advisory Guidelines, in the case of ''[http://canlii.ca/t/1l3x1 W. v. W]'', 2005 BCSC 1010. The judge said that the Advisory Guidelines "provide a cross check against the assessment made under existing law", and that the formulas provided in the Advisory Guidelines are "consistent with the law in British Columbia". She then made an order for spousal support using the Advisory Guidelines as "a check," without expressly applying the Advisory Guidelines to determine the issue. The Advisory Guidelines, she held, is not law, and is not intended to become law.

This view was softened later in 2005 by the Court of Appeal in the case of ''[http://canlii.ca/t/1lb8m Yemchuk v. Yemchuk]'', 2005 BCCA 406. In this case, the court held that the Advisory Guidelines reflects the general results seen in the case law on spousal support. While the court stopped well short of saying that the Advisory Guidelines must be used to determine spousal support, it did consider the Advisory Guidelines "a useful tool" and "a factor" to be considered in making an order for spousal support, and made an order for support that was within a hair's breadth of the numbers the Advisory Guidelines formulas produced.

As a result of ''Yemchuk'', the law in British Columbia was that the Advisory Guidelines is a factor to be taken into <span class="noglossary">account</span> in fixing the amount and duration of an order for spousal support, but that it is no more than a factor. This changed with ''[http://canlii.ca/t/1nwzz Redpath v. Redpath]'', 2006 BCCA 338, a 2006 decision of the Court of Appeal, in which the court held that it is an appealable error for a judge to fail to consider the results produced by the Advisory Guidelines. This moves things well beyond ''Yemchuk'', as now a trial judge ''must'' consider the Advisory Guidelines formula results in making a decision on spousal support. The Court of Appeal went even further in ''[http://canlii.ca/t/2d35m Domirti v. Domirti]'', 2010 BCCA 472, a  2010 case, in which it held that an award of spousal support that falls substantially outside the Advisory Guidelines ranges may be an appealable error.

(Of course, this also means that lawyers must become proficient in using the Advisory Guidelines formulas or they risk giving their clients and the courts incorrect information. The Without Child Support calculations, discussed later, are not terribly complex, but the With Child Support calculations demand a basic knowledge of the federal and provincial benefits and credits relating to children, the different deductions that apply to employment and self-employment income, received versus taxable dividends, and a few other wrinkles relating to the calculation of after-tax income. Owning the software required to do the Advisory Guidelines calculations isn't enough. Lawyers need to know how to expertly use that software, with tax and income issues in mind, and the software has to do the math and actually perform those calculations correctly.)

The Advisory Guidelines describes two basic formulas: one for when child support is not being paid (the ''Without Child Support Formula''), as might be the case if the couple have no children or if all of the children are adults and financially independent at the time of separation; and, one for when there is a legal obligation to pay child support (the ''With Child Support Formula''), whether child support is actually being paid or not.  

<blockquote>The '''amount''' of support is 1.5 to 2 percent of the difference between the parties' gross incomes for each year of marriage.</blockquote>

<blockquote><blockquote>''For example, say a relationship is 10 years long, and Party A has a gross income of $50,000 and Party B has an income of $20,000. The difference between the parties' incomes is $30,000. Party B would have share in the difference of 15 to 20 percent (1.5 times 10 and 2 times 10), or between $4,500 and $6,000 per year. On a monthly basis, support would be paid at $375 to $500.''</blockquote></blockquote>

<blockquote>The '''length of time''' support will be paid is 0.5 to 1 year for each year of the relationship. If a couple have been together for more than 20 years, or if the age of the dependant party plus the number of years of the relationship equals 65, support will be paid indefinitely.</blockquote>

<blockquote><blockquote>''Using the same example, support would be payable for 5 to 10 years (0.5 times 10 and 1 times 10). If, however, the dependent party was 55 at the time of separation, support would be paid indefinitely (55 years of age plus 10 years equals 65).''</blockquote></blockquote>

<blockquote>The '''amount''' of support is 40 to 46% of the payor's individual net disposable income plus the recipient's net disposable income.</blockquote>

<blockquote>The '''payor's net disposable income''' is his or her gross income, minus taxes and minus his or her child support obligation, including the tax credits he or she receives as a result of paying spousal support.</blockquote>

<blockquote>The '''recipient's net disposable income''' is his or her gross income, minus taxes and minus his or her notional child support obligation, plus any government benefits he or she receives, less the taxes payable as a result of receiving spousal support.</blockquote>

<blockquote><blockquote>''Say the parties have an 8 year old child, the payor has a gross income of $50,000 and the recipient has an income of $20,000. The payor's net disposable income is $26,710 ($50,000 minus taxes of $15,570, minus annual child support of $5,112, minus EI deductions of $772, minus CPP deductions of $1,831). The recipient's net disposable income is $15,045 ($20,000 minus taxes of $4,410, minus notional child support of $2,052, minus EI deductions of $396, minus CPP deductions of $816, plus child tax benefit of $1,208, plus national child benefit of $1,511).''</blockquote></blockquote>

<blockquote><blockquote>''The family's net disposable income is $41,755 ($26,710 plus $15,045). 40 percent of the net disposable income is $16,702; 46 percent of the income is $19,207. After deducting the recipient's net disposable income, the difference between the recipient's income and 40 percent of the family's disposable income is $1,657 per year, and $4,162 for 46 percent.''</blockquote></blockquote>

<blockquote><blockquote>''On a monthly basis, spousal support would be between $138 and $346. The total the payor would pay each month would be spousal support plus $426 in child support.''</blockquote></blockquote>

<blockquote>The '''length of time''' for which support will be paid ranges from the longest of two formulas used to determine the low end of the range to the longest of two formulas used to determine the high end of the range. If a couple have been together for more than 20 years, or if the age of the dependant party plus the number of years of the relationship equals 65, support will be paid indefinitely.</blockquote>

<blockquote>The '''low range''' formulas for duration are:</blockquote>

<blockquote>The '''high range''' formulas for duration are:</blockquote>

I've written a paper on the subject for the Department of Justice, "[http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/calc/pdf/orrssagc.pdf Obtaining Reliable and Repeatable SSAG Calculations]," which is available to the public. Be warned: it's a bit dry.

#the payor's gross income,

#the recipient's gross income,

#the length of time the parties lived together,

#the recipient's age,

#the number of children child support is payable for, and

#the number of years until the youngest child starts and leaves full-time school.

#all of the children are over the age of majority,

#the parents have split custody of the children,

#the parents have shared custody of the children,

#the children live with the payor, or

#the children are step-children to the payor.

* [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html Spousal Support Advisory Guidelines]

* [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/s-p/index.html Spousal Support Advisory Guidelines: Report on Revisions]

* ''[http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/calc/pdf/orrssagc.pdf Obtaining Reliable and Repeatable SSAG Calculations]'', by JP Boyd

* [http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/index.html Department of Justice: About spousal support]

* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/topic-theme/ug_a1-gu_a1/index.html SSAG User’s Guide]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}