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The Spousal Support Advisory Guidelines (view source)
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{{JP Boyd on Family Law TOC|expanded = spousalsupport}} | {{JP Boyd on Family Law TOC|expanded = spousalsupport}} | ||
The 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. When someone is entitled to receive spousal support, the Advisory Guidelines describes several different formulas that can be used to calculate how much support should be paid and the length of time it should be paid for. While no one is required to use the Advisory Guidelines, lawyers and the courts routinely use them in making decisions about spousal support. | The [[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. When someone is entitled to receive spousal support, the Advisory Guidelines describes several different formulas that can be used to calculate how much support should be paid and the length of time it should be paid for. While no one is required to use the Advisory Guidelines, lawyers and the courts routinely use them in making decisions about spousal support. | ||
This page provides an introduction to the Spousal Support Advisory Guidelines. It discusses what the courts have had to say about the Advisory Guidelines and provides an description of its formulas, restructuring the results of those formulas, and the exceptions to the formulas. | This page provides an introduction to the Spousal Support Advisory Guidelines. It discusses what the courts have had to say about the Advisory Guidelines and provides an description of its formulas, restructuring the results of those formulas, and the exceptions to the formulas. | ||
==An | ==An introduction to the Spousal Support Advisory Guidelines== | ||
In 2001, the federal Department of Justice struck an advisory working group to look into the feasibility of uniform guidelines for the calculation of spousal support. The group was composed of judges, family law lawyers, law school faculty members and social workers, and was led by Professors Carol Rogerson and Rollie Thompson, both gifted and highly qualified academics with strong backgrounds in family law. | In 2001, the federal Department of Justice struck an advisory working group to look into the feasibility of uniform guidelines for the calculation of spousal support. The group was composed of judges, family law lawyers, law school faculty members and social workers, and was led by Professors Carol Rogerson and Rollie Thompson, both gifted and highly qualified academics with strong backgrounds in family law. | ||
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In January 2005, Professors Rogerson and Thompson released their first paper, ''Spousal Support Advisory Guidelines: A Draft Proposal'', for public comment and feedback. After touring the country speaking to judges, lawyers and academics, and monitoring the case law on the draft Advisory Guidelines develop for several years, Rogerson and Thompson released their final paper, ''Spousal Support Advisory Guidelines'', in July 2008. | In January 2005, Professors Rogerson and Thompson released their first paper, ''Spousal Support Advisory Guidelines: A Draft Proposal'', for public comment and feedback. After touring the country speaking to judges, lawyers and academics, and monitoring the case law on the draft Advisory Guidelines develop for several years, Rogerson and Thompson released their final paper, ''Spousal Support Advisory Guidelines'', in July 2008. | ||
===The | ===The legal status of the advisory guidelines=== | ||
The Advisory Guidelines is not a law, and people involved in family law disputes are not bound by it. As of July 2008, the Department of Justice said that it had no plans to turn the Advisory Guidelines into a law and didn't intend to do so. I've heard nothing to suggest a contrary intention since. | The Advisory Guidelines is not a law, and people involved in family law disputes are not bound by it. As of July 2008, the Department of Justice said that it had no plans to turn the Advisory Guidelines into a law and didn't intend to do so. I've heard nothing to suggest a contrary intention since. | ||
===The Advisory Guidelines in a | ===The Advisory Guidelines in a nutshell=== | ||
The Spousal Support Advisory Guidelines is an attempt to capture how the majority of Canadian court decisions on spousal support have determined how much support should be paid, and how long support should be paid for, in mathematical formulas. It is not intended to change the law on spousal support, rather it is intended to normalize future decisions about spousal support based upon how the general majority of past court decisions have dealt with the issue. | The Spousal Support Advisory Guidelines is an attempt to capture how the majority of Canadian court decisions on spousal support have determined how much support should be paid, and how long support should be paid for, in mathematical formulas. It is not intended to change the law on spousal support, rather it is intended to normalize future decisions about spousal support based upon how the general majority of past court decisions have dealt with the issue. | ||
====Influence of | ====Influence of existing law==== | ||
The Advisory Guidelines attempts to reflect current practice under the existing law. The Advisory Guidelines is not based on any particular theory of spousal support; it is an independent attempt to reflect the results presently found in the case law on the subject. | The Advisory Guidelines attempts to reflect current practice under the existing law. The Advisory Guidelines is not based on any particular theory of spousal support; it is an independent attempt to reflect the results presently found in the case law on the subject. | ||
====Income | ====Income sharing==== | ||
The essential concept underlying the Advisory Guidelines is the calculation of support based on the total disposable income available to both parties, rather than looking at each party's needs and means separately. The formulas work with the total amount of money collectively available to a couple. | The essential concept underlying the Advisory Guidelines is the calculation of support based on the total disposable income available to both parties, rather than looking at each party's needs and means separately. The formulas work with the total amount of money collectively available to a couple. | ||
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Income sharing does not mean an equal division of income, however, and the ranges the Advisory Guidelines proposes when child support is paid is between 40% and 46% of the total disposable income available to both parties. When no child support is paid, the Advisory Guidelines gives the recipient a share of the difference between the recipient's income and the payor's income which increases with the length of the relationship. | Income sharing does not mean an equal division of income, however, and the ranges the Advisory Guidelines proposes when child support is paid is between 40% and 46% of the total disposable income available to both parties. When no child support is paid, the Advisory Guidelines gives the recipient a share of the difference between the recipient's income and the payor's income which increases with the length of the relationship. | ||
====Entitlement to | ====Entitlement to support==== | ||
The Advisory Guidelines does not deal with whether a spouse is entitled to receive support. Entitlement is, of course, the first question to be decided when dealing with an application for spousal support. The Advisory Guidelines will only be used when a spouse is found to be entitled to spousal support. | The Advisory Guidelines does not deal with whether a spouse is entitled to receive support. Entitlement is, of course, the first question to be decided when dealing with an application for spousal support. The Advisory Guidelines will only be used when a spouse is found to be entitled to spousal support. | ||
====Amount of | ====Amount of support==== | ||
When no child support is paid, the length of the marriage is central in determining both the amount of support payable and the duration for which support must be paid: the longer the relationship, the more support is paid for longer. The parties' gross incomes are used to determine spousal support. | When no child support is paid, the length of the marriage is central in determining both the amount of support payable and the duration for which support must be paid: the longer the relationship, the more support is paid for longer. The parties' gross incomes are used to determine spousal support. | ||
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Where child support is paid, the amount of support payable will be calculated taking into consideration the payment of child support and the different tax rules relating to spousal support and child support. The parties' net incomes are be used to determine spousal support. | Where child support is paid, the amount of support payable will be calculated taking into consideration the payment of child support and the different tax rules relating to spousal support and child support. The parties' net incomes are be used to determine spousal support. | ||
====Duration of | ====Duration of support==== | ||
In many cases, the Advisory Guidelines sets out a range of years that support will be paid for; in certain cases, such as long marriages, where the dependent spouse is older or when child support is paid, support will be paid for an indefinite period of time. | In many cases, the Advisory Guidelines sets out a range of years that support will be paid for; in certain cases, such as long marriages, where the dependent spouse is older or when child support is paid, support will be paid for an indefinite period of time. | ||
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The key factors in determining the length of time for which support will paid are the length of the marriage plus any period of time the parties lived together before marriage, the age of the recipient of support and the age of the youngest child. | The key factors in determining the length of time for which support will paid are the length of the marriage plus any period of time the parties lived together before marriage, the age of the recipient of support and the age of the youngest child. | ||
====Upper and | ====Upper and lower income limits==== | ||
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 account only at the discretion of the court. | 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 account only at the discretion of the court. | ||
====Exceptions to the | ====Exceptions to the formulas and restructuring the results==== | ||
To every rule there is an exception, and the Advisory Guidelines is no different. The ranges the Advisory Guidelines formulas produce aren't carved in stone. Factors such as advanced age, illness, debt load and so forth may suggest that the results for amount, duration or both should be ignored. | To every rule there is an exception, and the Advisory Guidelines is no different. The ranges the Advisory Guidelines formulas produce aren't carved in stone. Factors such as advanced age, illness, debt load and so forth may suggest that the results for amount, duration or both should be ignored. | ||
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The Advisory Guidelines also allows for the restructuring of a support award to pay more for a shorter time, to pay less for a longer time, or to pay it all up front in one lump sum. Restructuring keeps the total amount paid within the results generated by the Advisory Guidelines formulas. | The Advisory Guidelines also allows for the restructuring of a support award to pay more for a shorter time, to pay less for a longer time, or to pay it all up front in one lump sum. Restructuring keeps the total amount paid within the results generated by the Advisory Guidelines formulas. | ||
====Unmarried | ====Unmarried spouses==== | ||
The Advisory Guidelines is written for married or formerly married spouses, because the federal government only has the authority to make rules about spousal support for married couples. The Advisory Guidelines is therefore based on the factors and tests set out in the ''Divorce Act'' rather than those set out in the different provincial laws about family breakdown and spousal support. | The Advisory Guidelines is written for married or formerly married spouses, because the federal government only has the authority to make rules about spousal support for married couples. The Advisory Guidelines is therefore based on the factors and tests set out in the ''[[Divorce Act]]'' rather than those set out in the different provincial laws about family breakdown and spousal support. | ||
That said, the Advisory Guidelines works just as well to decide spousal support for married spouses and unmarried spouses since the laws that apply to determine spousal support for unmarried spouses in British Columbia, the ''Family Law Act'', works in exactly the same way as the ''Divorce Act''. | That said, the Advisory Guidelines works just as well to decide spousal support for married spouses and unmarried spouses since the laws that apply to determine spousal support for unmarried spouses in British Columbia, the ''[[Family Law Act]]'', works in exactly the same way as the ''Divorce Act''. | ||
===The | ===The author's view=== | ||
The Advisory Guidelines has melded seamlessly into family law practice in this province and is routinely used to determine spousal support, whether in the course of litigation, arbitration, mediation or negotiation. Professor Thompson was exactly correct when he predicted that lawyers and the courts would come to rely on the Advisory Guidelines by custom. Frankly, the Advisory Guidelines offers a seductively easy solution to a difficult problem. | The Advisory Guidelines has melded seamlessly into family law practice in this province and is routinely used to determine spousal support, whether in the course of litigation, arbitration, mediation or negotiation. Professor Thompson was exactly correct when he predicted that lawyers and the courts would come to rely on the Advisory Guidelines by custom. Frankly, the Advisory Guidelines offers a seductively easy solution to a difficult problem. | ||
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The point of the arbitrariness of the Child Support Guidelines is to reduce conflict by setting out a fixed sum that must be paid depending on nothing more than the payor's income and the number of children. The same principle applies to the Spousal Support Advisory Guidelines, although the formulas are a lot more complicated. If an arbitrary set of numbers reduces conflict and saves money, I'm all for it, as long as those arbitrary numbers have a certain fundamental reasonableness to them. | The point of the arbitrariness of the Child Support Guidelines is to reduce conflict by setting out a fixed sum that must be paid depending on nothing more than the payor's income and the number of children. The same principle applies to the Spousal Support Advisory Guidelines, although the formulas are a lot more complicated. If an arbitrary set of numbers reduces conflict and saves money, I'm all for it, as long as those arbitrary numbers have a certain fundamental reasonableness to them. | ||
===DivorceMate's | ===DivorceMate's spousal support calculator=== | ||
Until fairly recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the absence of public, free spousal support calculators. This seemed to me to be an appropriate function of government, particularly as it was government which funded the Advisory Guidelines project, however the Department of Justice had no enthusiasm for the project. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, would not sell their product to people weren't employed in the justice system in some capacity. | Until fairly recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the absence of public, free spousal support calculators. This seemed to me to be an appropriate function of government, particularly as it was government which funded the Advisory Guidelines project, however the Department of Justice had no enthusiasm for the project. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, would not sell their product to people weren't employed in the justice system in some capacity. | ||
This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, mysupportcalculator.ca. The website performs child support calculations under the Child Support Guidelines and spousal support calculations under the Advisory Guidelines. The results of the spousal support calculations do not precisely match the results produced by their bells-and-whistles product for professionals and do not account for all of the factors which can impact on the results (such as source of income, tax benefits, deductions and credits, payments to special expenses, and so forth), 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, whether the resource is a revenue-generating advertising platform or not. | This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, [www.mysupportcalculator.ca mysupportcalculator.ca]. The website performs child support calculations under the Child Support Guidelines and spousal support calculations under the Advisory Guidelines. The results of the spousal support calculations do not precisely match the results produced by their bells-and-whistles product for professionals and do not account for all of the factors which can impact on the results (such as source of income, tax benefits, deductions and credits, payments to special expenses, and so forth), 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, whether the resource is a revenue-generating advertising platform or not. | ||
==The | ==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 ''W. v. W''. 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. | 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. | ||
On 19 July 2005, the court released its second judgment on the Advisory Guidelines, ''M.S. v. W.S.'' In this case, the judge 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". | On 19 July 2005, the court released its second judgment on the Advisory Guidelines, ''[http://canlii.ca/t/1l2x7 M.S. v. W.S.]'', 2005 BCSC 939. In this case, the judge 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 ''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 "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 hairsbreadth of the numbers the Advisory Guidelines formulas produced. | 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 hairsbreadth of the numbers the Advisory Guidelines formulas produced. | ||
===The | ===The state of the law in British Columbia=== | ||
As a result of ''Yemchuk'', the law in British Columbia was that the Advisory Guidelines is a factor to be taken into account in fixing the amount and duration of an order for spousal support, but that it is no more than a factor. This changed with ''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 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 ''Domirti v. Domirti'', a 2010 case, in which it held that an award of spousal support which falls substantially outside the Advisory Guidelines ranges may be an appealable error. | As a result of ''Yemchuk'', the law in British Columbia was that the Advisory Guidelines is a factor to be taken into account 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 which falls substantially outside the Advisory Guidelines ranges may be an appealable error. | ||
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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(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 which 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. See my paper on the subject, posted on the Department of Justice's website.) | (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 which 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. See my paper on the subject, posted on the Department of Justice's website.) | ||
===The Law in | ===The Law in other provinces=== | ||
Many courts in Canada's other provinces and territories have talked about the Advisory Guidelines in much the same way as our courts have, although with varying degrees of enthusiasm. Alberta has led the charge against the Advisory Guidelines and is the province in which it least likely to be used to determine a spousal support obligation. | Many courts in Canada's other provinces and territories have talked about the Advisory Guidelines in much the same way as our courts have, although with varying degrees of enthusiasm. Alberta has led the charge against the Advisory Guidelines and is the province in which it least likely to be used to determine a spousal support obligation. | ||
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Here is a sampling of judicial comment on the Advisory Guidelines. | Here is a sampling of judicial comment on the Advisory Guidelines. | ||
''Woodall v. Woodall'', Ontario Court of Justice, 2005: | ''[http://canlii.ca/t/1llxc Woodall v. Woodall]'', 2005 ONCJ 253, Ontario Court of Justice, 2005: | ||
<blockquote>"Although the Spousal Support Advisory Guidelines may be of some assistance to the court on an initial application for spousal support, it must be noted that they are advisory only and are not binding on the court. More importantly, the authors of the guidelines make it very clear in the Executive Summary ... that the advisory guidelines do not deal with the effect of a prior agreement on spousal support and that this issue, like entitlement, is outside the scope of the advisory guidelines and would continue to be dealt with under the evolving law guided by the Supreme Court of Canada's recent decision in ''Miglin v. Miglin''."</blockquote> | <blockquote>"Although the Spousal Support Advisory Guidelines may be of some assistance to the court on an initial application for spousal support, it must be noted that they are advisory only and are not binding on the court. More importantly, the authors of the guidelines make it very clear in the Executive Summary ... that the advisory guidelines do not deal with the effect of a prior agreement on spousal support and that this issue, like entitlement, is outside the scope of the advisory guidelines and would continue to be dealt with under the evolving law guided by the Supreme Court of Canada's recent decision in ''Miglin v. Miglin''."</blockquote> | ||
''Puddifant v. | ''[http://canlii.ca/t/1mjwb Puddifant v. Fraser]'', 2005 NSSC 340, Nova Scotia Supreme Court, 2005: | ||
<blockquote>"Counsel urged the court to consider the Spousal Support Advisory Guidelines. These are not law."</blockquote> | <blockquote>"Counsel urged the court to consider the Spousal Support Advisory Guidelines. These are not law."</blockquote> | ||
''Modry v. Modry'', Alberta Court of Queen's Bench, 2005: | ''[http://canlii.ca/t/1pvph Modry v. Modry]'', 2005 ABQB 262, Alberta Court of Queen's Bench, 2005: | ||
<blockquote>"These Guidelines are not mandatory and are only a suggestion. There has been very little judicial analysis of the Guidelines as they are new."</blockquote> | <blockquote>"These Guidelines are not mandatory and are only a suggestion. There has been very little judicial analysis of the Guidelines as they are new."</blockquote> | ||
<blockquote>"I suggest that courts will likely use these Guidelines as a bench mark to see what the support amount would be if the Guidelines were applies. Thus it will serve as another method of calculation, which when coincidentally echoing judicial discretion, will become referenced with approval. In other cases where the courts are either astonished by the payment proposition, that is that the math creates a number that is perceived to be too high or inadequate, the courts will shy away from its application."</blockquote> | <blockquote>"I suggest that courts will likely use these Guidelines as a bench mark to see what the support amount would be if the Guidelines were applies. Thus it will serve as another method of calculation, which when coincidentally echoing judicial discretion, will become referenced with approval. In other cases where the courts are either astonished by the payment proposition, that is that the math creates a number that is perceived to be too high or inadequate, the courts will shy away from its application."</blockquote> | ||
And, finally, my personal favourite for the judge's powerful and florid language, ''V.S. v. A.K.'', Alberta Court of Queen's Bench, 2005: | And, finally, my personal favourite for the judge's powerful and florid language, ''[http://canlii.ca/t/1pvt2 V.S. v. A.K.]'', 2005 ABQB 754, Alberta Court of Queen's Bench, 2005: | ||
<blockquote>"The provisions of the ''Divorce Act'' as interpreted by the Supreme Court of Canada are the law in this country with respect to spousal support. The Spousal Support Advisory Guidelines are the work of two university professors, Carol Rogerson and Rollie Thompson, assisted by a small committee. Those with strong views to the contrary were not involved, nor was there widespread discussion of the guidelines prior to their publication. They have not been enacted by the Parliament of Canada or any Provincial Legislature nor are they the subject of any governmental regulation.</blockquote> | <blockquote>"The provisions of the ''Divorce Act'' as interpreted by the Supreme Court of Canada are the law in this country with respect to spousal support. The Spousal Support Advisory Guidelines are the work of two university professors, Carol Rogerson and Rollie Thompson, assisted by a small committee. Those with strong views to the contrary were not involved, nor was there widespread discussion of the guidelines prior to their publication. They have not been enacted by the Parliament of Canada or any Provincial Legislature nor are they the subject of any governmental regulation.</blockquote> | ||
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<blockquote>"Judges should exercise extreme caution in using the Guidelines. The ''Divorce Act'' and the decisions of the Supreme Court of Canada call on judges to undertake a thorough analysis in each case. Not to do so is to disregard the views of the highest court in this country and to make a mockery of stare decisis."</blockquote> | <blockquote>"Judges should exercise extreme caution in using the Guidelines. The ''Divorce Act'' and the decisions of the Supreme Court of Canada call on judges to undertake a thorough analysis in each case. Not to do so is to disregard the views of the highest court in this country and to make a mockery of stare decisis."</blockquote> | ||
==The | ==The forumlas== | ||
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. The main With Child Support Formula is designed for situations where the person receiving spousal support is also the person receiving child support. Since this isn't always the case and the amount of child support that's being paid isn't always the amount required by the Child Support Guidelines, the Advisory Guidelines has a few variations of the With Child Support Formula which will apply: | 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. The main With Child Support Formula is designed for situations where the person receiving spousal support is also the person receiving child support. Since this isn't always the case and the amount of child support that's being paid isn't always the amount required by the Child Support Guidelines, the Advisory Guidelines has a few variations of the With Child Support Formula which will apply: | ||
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#the recipient's age. | #the recipient's age. | ||
===The | ===The main With Child Support Formula=== | ||
This formula is a lot more complex. In this formula, child support is taken out of the payor's gross income and the recipient's income, taxes are taken into account, and government benefits are added to the recipient's income. The reason why child support is deducted from the recipient's income is to reflect the costs that parent bears in raising the children. | This formula is a lot more complex. In this formula, child support is taken out of the payor's gross income and the recipient's income, taxes are taken into account, and government benefits are added to the recipient's income. The reason why child support is deducted from the recipient's income is to reflect the costs that parent bears in raising the children. | ||
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<blockquote><blockquote>2) the length of time remaining until the youngest child finishes full-time school</blockquote></blockquote> | <blockquote><blockquote>2) the length of time remaining until the youngest child finishes full-time school</blockquote></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, "Obtaining Reliable and Repeatable SSAG Calculations," which is available to the public. Be warned: it's a bit dry. | 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, "[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 maximum amount payable under this formula is the range the formula sets out: 40% to 46% 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% of the difference between the payor's net disposable income and the recipient's net disposable income. | ||
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These formulas use modified or hybrid versions of the Without Child Support and main With Child Support formulas. | These formulas use modified or hybrid versions of the Without Child Support and main With Child Support formulas. | ||
==Restructuring the | ==Restructuring the results of the Advisory Guidelines Formulas== | ||
The Advisory Guidelines includes a few ways to accommodate circumstances that might make the formulas' results unfair to the people involved. The Advisory Guidelines requires that the parties first attempt to use the ranges to solve the problem, but allows for the results to be ''restructured'' if adjustments within the ranges fail to solve the problem. | The Advisory Guidelines includes a few ways to accommodate circumstances that might make the formulas' results unfair to the people involved. The Advisory Guidelines requires that the parties first attempt to use the ranges to solve the problem, but allows for the results to be ''restructured'' if adjustments within the ranges fail to solve the problem. | ||
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Restructuring will not work if the length of time support is to be paid for is indefinite. In cases like this, the best option is probably to build in a review date, a date on which the recipient's entitlement to receive spousal support will be checked. | Restructuring will not work if the length of time support is to be paid for is indefinite. In cases like this, the best option is probably to build in a review date, a date on which the recipient's entitlement to receive spousal support will be checked. | ||
==Exceptions to the Advisory Guidelines | ==Exceptions to the Advisory Guidelines formulas== | ||
If adjusting support within the ranges doesn't work and if restructuring support doesn't work, the Advisory Guidelines allows parties to depart from the numbers produced by the formulas to accommodate their special circumstances. The authors of the Advisory Guidelines are clear that these exceptions are to be treated as a last resort. | If adjusting support within the ranges doesn't work and if restructuring support doesn't work, the Advisory Guidelines allows parties to depart from the numbers produced by the formulas to accommodate their special circumstances. The authors of the Advisory Guidelines are clear that these exceptions are to be treated as a last resort. | ||
===Greater | ===Greater need for compensation=== | ||
In shorter marriages, the results produced by the formulas might not reflect a recipient's right to be compensated for a sacrifice made in the course of the marriage. Circumstances that might fall into this exception would include: giving up a job to be with the payor; or, moving across the country to be with the payor and losing a job or a business. | In shorter marriages, the results produced by the formulas might not reflect a recipient's right to be compensated for a sacrifice made in the course of the marriage. Circumstances that might fall into this exception would include: giving up a job to be with the payor; or, moving across the country to be with the payor and losing a job or a business. | ||
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Under this exception, the results produced by the formula for duration will not apply. | Under this exception, the results produced by the formula for duration will not apply. | ||
===Payment of | ===Payment of family debts=== | ||
A payor who winds up being responsible to pay for debts incurred during the marriage may not be able to meet the payments required by the formula for amount. This will particularly be the case for families whose debts exceed their assets. | A payor who winds up being responsible to pay for debts incurred during the marriage may not be able to meet the payments required by the formula for amount. This will particularly be the case for families whose debts exceed their assets. | ||
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Under this exception, the results produced by the formula for amount will not apply. | Under this exception, the results produced by the formula for amount will not apply. | ||
===Other | ===Other support obligations=== | ||
In cases where a payor has an obligation to provide support to other people, such as prior spouses or children from previous relationships, the payor may not be able to pay spousal support at the amount required by the formula. | In cases where a payor has an obligation to provide support to other people, such as prior spouses or children from previous relationships, the payor may not be able to pay spousal support at the amount required by the formula. | ||
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Under this exception, the payor's income is adjusted to deduct the amount of support paid as a result of the previous relationship before calculating the amount spousal support to be paid for the present relationship. | Under this exception, the payor's income is adjusted to deduct the amount of support paid as a result of the previous relationship before calculating the amount spousal support to be paid for the present relationship. | ||
===Other | ===Other exceptions=== | ||
The Advisory Guidelines allows still other exceptions from the formulas to address situations where a child has special needs which result in the parents having greater expenses than other parents, where a relationship was very short but resulted in significant economic loss to the recipient, like the loss of a career opportunity or an expensive move, where payment of support within the ranges for amount is not sufficient to meet the recipient's needs, and where the payor's income is not taxed. | The Advisory Guidelines allows still other exceptions from the formulas to address situations where a child has special needs which result in the parents having greater expenses than other parents, where a relationship was very short but resulted in significant economic loss to the recipient, like the loss of a career opportunity or an expensive move, where payment of support within the ranges for amount is not sufficient to meet the recipient's needs, and where the payor's income is not taxed. | ||