The Spousal Support Advisory Guidelines: Difference between revisions
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The Spousal Support Advisory Guidelines (view source)
Revision as of 23:12, 26 August 2024
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Nate Russell (talk | contribs) (From staging July 2022) |
Nate Russell (talk | contribs) (Clicklaw directory link edit) |
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{{DOJbadge | {{DOJbadge | ||
| resourcetype = a detailed user's guide to | | resourcetype = a detailed user's guide to | ||
| link = the [ | | link = the [https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/ Spousal Support Advisory </br>Guidelines: The Revised </br>User's Guide] | ||
}}The ''[ | }}The ''[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]'' is an academic paper published by the federal Department of Justice in July 2008. It is not a law and is not expected to become a law. However, when a spouse is entitled to receive spousal support, lawyers, mediators, arbitrators and judges often use the Advisory Guidelines to figure out how much spousal support should be paid, and how long spousal support should be paid for. | ||
This section provides an introduction to the Spousal Support Advisory Guidelines. It discusses what the courts have had to say about the Advisory Guidelines and describes how its formulas work, how they can be restructured for fairness, and the exceptions to the formulas. | This section provides an introduction to the Spousal Support Advisory Guidelines. It discusses what the courts have had to say about the Advisory Guidelines and describes how its formulas work, how they can be restructured for fairness, and the exceptions to the formulas. | ||
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Until relatively recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the lack of public, free spousal support calculators. This seemed to me to be an appropriate function of government, particularly as it was government that funded the Advisory Guidelines project. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, wouldn't sell their product to people who weren't employed in the justice system in some capacity. This left good, high-quality calculators only available to lawyers and judges, and that didn't seem fair. | Until relatively recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the lack of public, free spousal support calculators. This seemed to me to be an appropriate function of government, particularly as it was government that funded the Advisory Guidelines project. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, wouldn't sell their product to people who weren't employed in the justice system in some capacity. This left good, high-quality calculators only available to lawyers and judges, and that didn't seem fair. | ||
This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, [ | This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, [https://mysupportcalculator.ca mysupportcalculator.ca]. The website performs child support calculations under the [[Child Support Guidelines]] and spousal support calculations under the [[Spousal Support Advisory Guidelines]]. The results of the online spousal support calculations don't precisely match the results produced by their bells-and-whistles product for professionals and don't <span class="noglossary">account</span> for all of the factors that can impact on the results. However, the results will be fine for most people most of the time. DivorceMate deserves much credit for making this resource available, and I thank them for it. | ||
==The views of the courts== | ==The views of the courts== | ||
On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the Advisory Guidelines, in the case of [ | On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the Advisory Guidelines, in the case of [https://canlii.ca/t/1l3x1 W. v. W.]. The court 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. | ||
On 19 July 2005, the court released its second judgment on the Advisory Guidelines, [ | On 19 July 2005, the court released its second judgment on the Advisory Guidelines, [https://canlii.ca/t/1l2x7 M.S. v. W.S.]. In this case, the court held, rather emphatically, that the court is not bound by the Advisory Guidelines in determining spousal support and that "equitable distribution can be achieved in a variety of ways and need not be calculated according to a strict formula." | ||
This view was softened later in 2005 by the Court of Appeal in the case of [ | This view was softened later in 2005 by the Court of Appeal in the case of [https://canlii.ca/t/1lb8m Yemchuk v. Yemchuk]. 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 to be a useful tool and a factor to be considered in making an orders 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 Advisory Guidelines became 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 [ | As a result of Yemchuk, the Advisory Guidelines became 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 [https://canlii.ca/t/1nwzz Redpath v. Redpath], 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 trial courts were ''required'' to consider the Advisory Guidelines formula results in making a decision on spousal support. In 2010, the Court of Appeal went even further in [https://canlii.ca/t/2d35m Domirti v. Domirti], which held that awards of spousal support that fall substantially outside the Advisory Guidelines may be appealable. | ||
The law in British Columbia, then, is that the results of the Advisory Guidelines calculations must be considered when making a decision on spousal support. The Advisory Guidelines is, in other words, all but mandatory in this province. | The law in British Columbia, then, is that the results of the Advisory Guidelines calculations must be considered when making a decision on spousal support. The Advisory Guidelines is, in other words, all but mandatory in this province. | ||
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<blockquote>2) the length of time remaining until the youngest child finishes full-time school</blockquote> | <blockquote>2) the length of time remaining until the youngest child finishes full-time school</blockquote> | ||
I told you it was complex. To quote Professor Thompson, "this is not a calculation you can do on the back of an envelope, you will need a computer program." This formula requires a detailed understanding of how income is determined under the Advisory Guidelines and of the various government benefits, tax deductions, and tax credits that can apply to adjust net income. I've written a paper on the subject for the Department of Justice, "[ | I told you it was complex. To quote Professor Thompson, "this is not a calculation you can do on the back of an envelope, you will need a computer program." This formula requires a detailed understanding of how income is determined under the Advisory Guidelines and of the various government benefits, tax deductions, and tax credits that can apply to adjust net income. I've written a paper on the subject for the Department of Justice, "[https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/calc/index.html Obtaining Reliable and Repeatable SSAG Calculations]," which is available to the public. Be warned, however. It's a bit dry. | ||
The maximum amount payable under this formula is the range the formula sets out: 40 to 46 percent of the difference between the payor's net disposable income and the recipient's net disposable income. | The maximum amount payable under this formula is the range the formula sets out: 40 to 46 percent of the difference between the payor's net disposable income and the recipient's net disposable income. | ||
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===Documents=== | ===Documents=== | ||
* [ | * [https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines] | ||
* [ | * [https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/calc/index.html Obtaining Reliable and Repeatable SSAG Calculations], by JP Boyd | ||
===Links=== | ===Links=== | ||
* [ | * [https://mysupportcalculator.ca DivorceMate’s free basic spousal support calculator] | ||
* [https:// | * [https://family.legalaid.bc.ca/finances-support/child-spousal-support/spousal-support Spousal support] from Legal Aid BC's Family Law website | ||
* [https://dialalaw.peopleslawschool.ca/spousal-support/ Spousal support] from Dial-A-Law by the People's Law School | |||
* [https:// | * [https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice's website "About spousal support"] | ||
* [ | * [https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/index.html Spousal Support Advisory Guidelines: The Revised User's Guide] | ||
* [ | |||