July 15, 2014
Carol Rogerson
Rollie Thompson

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History
How the SSAG were created, current status
Appeal decisions
Current SSAG issues
SSAG successes, problems
Spousal guidelines internationally
Materials:
◦ Appeal Decisions 2010-14
◦ “Canada’s Experiment” 2011 FLQ article
◦ “Ideas of Spousal Support Entitlement”

(1) Early Research (2001-2002)
(2) Background Paper (December 2002)
(3) Sneak Preview (July 2004)
(4) Draft Proposal (January 2005)
Immediate use, software available
(5) Appeal Court Decisions: BCCA August 2005,
NBCA April 2006, ONCA January 2008
(6) Detailed Feedback in 2006-08
(7) Revised Final Version (July 2008)
(8) New and Improved User’s Guide (March 2010)
(9) Monitoring for New Developments by DOJ
Software updates taxes, etc.

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Not legislated, informal
National: divorce and other support claims
Ranges for amount and duration, threshold entitlement determined first
Formula ranges for “typical” cases, note exceptions and departures
Formulas reflect dominant patterns
Sophistication required, complex issues
Software necessary for most cases

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Experience with Child Support Guidelines
◦ Widely viewed as success
◦ Familiarity with income-based guidelines
SCC in
(1999) confused us
◦ No guidance on amount, duration
◦ Rogerson, Thompson papers in 2001
Outcomes inconsistent, unpredictable
◦ Frustration of spouses, Bar, bench
◦ Desperate for guidance
Federal Justice commitment
◦ Advisory, professional

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To reduce conflict, encourage settlement
To create consistency and fairness, more predictability, thus legitimacy
To reduce legal costs, improve efficiency of process
To provide a starting point for solutions in
CDR/CFL/mediation/settlement confs.
To provide basic structure for further judicial elaboration in decisions

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Background Paper (December 2002)
SSAG Final Version (July 2008)
New & Improved User’s Guide (March 2010)
(2014 updated version forthcoming)
(2009), 28 Can.Fam.L.Q. 193 (SSAG issue)
(2011), 45 F.L.Q. 241 (materials)
Website: library.law.utoronto.ca/spousal-supportadvisory-guidelines

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(2008) still applies
Monitoring: no major changes since 2008
Software adjusts for tax, benefit changes
New User’s Guide (spring 2015) will reflect recent judicial decisions new patterns can emerge
Look to decisions, trends in other provinces
◦ Smaller provinces look to BC, ON for e.g.s
◦ Less-SSAGish provinces look to SSAG provinces

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BC, NB, ON, PEI: appellate endorsement
NL, SK, MB: extensive use at trial
NS, AB: wide,erratic use, appellate confusion
QC: just beginning, 2011 QCCA decision
180+ CA decisions: BC 83, ON 32, AB 23,
NB 15, NS 9, MB 6, QC 8, MB 6, PEI 1, NL 1
2400+ trial decisions: BC 857, ON 801,
AB 157, NS 153, SK 133, NB 104, NL 68,
MB 56, QC 53, Terr. 16, PEI 7
No SCC decision: leave denied 7 times

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Fewer interesting appeals since 2012
Older appeals cited, e.g.
ONCA:
NBCA:
, 10-year time limit struck, indefinite after 20-year marriage
MBCA:
Reisman
Kynoch
Fisher, Chutter
BCCA: 9 of19 appeals raised “imputing” issues
◦ E.g. PRM, Brandl, Kouznetsova, Shen, KD, Marquez amount increased, but still below range (?)
QCCA: similar to
Smith
, cautious re SSAG use,
Kynoch , 2011 QCCA 1554
(2011), no “error” not to use SSAG, but reasons required, then mid-SSAG ordered…

Focus today on SSAG, but not:
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Threshold/no entitlement
Spousal support agreements,
Variation, material change after
Income determination mechanics
Retroactive spousal support

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SSAG only AFTER entitlement established
Social assistance (incl. ODSP) is NOT income
Include any pre-marital cohabitation
Always consider s. 7 expenses BEFORE SSAG
Discount lump sum for non-deductibility
Know how outcomes calculated!
Be transparent about assumptions, esp. income

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Fewer “ordinary” cases reported, more settlements
Twice as many as with child support without child support cases
, but demographics
Income determination now central issue
More attempts to “impute” income…
Default to mid-range on amount
Generally consistent on duration
Interprovincial differences re review orders
Reviews vs long time limits?
Exceptions still under-used

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Mid is not “norm”, factors to consider:
Strength of compensatory claim
Recipient’s needs
Age, number, needs of children
Needs, ability to pay of payor
Work incentives for payor
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Property division, debts
Self-sufficiency incentives for recipient
Good e.g.s: Reid v Carnduff (ONSC 2014); Mayer
(ONSC 2013);
2013); Jardine
Brown (NBQB 2013);
(NSSC 2013); Hari
Cochrane (BCSC
(ONSC 2013);
Bastarache (NBQB 2012); SD v JD (NBQB 2012)

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Beyond threshold, identifying entitlement still important; compensatory vs non-compensatory
Location in ranges
Exceptions, variation issues
Duration: end of entitlement
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Compensatory issues:
◦ “She was a secretary before, so no loss”…
◦ “She worked throughout the marriage, so no loss” …
◦ “He received no career advantage because she stayed home with the kids” …
◦ good compensatory analysis: Hartshorne
Abernethy v Peacock (ONSC 2013)
(2010 BCCA),
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Non-compensatory issues:
◦ “need” as a ceiling vs. marital standard of living in long marriages
◦ post-separation need?: Tscherner v. Farrell
Jubinville (BCSC 2013)
(ONSC 2014),

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Divorce Act, s. 15.2(6)(a) and (b)
Economic disadvantage/advantage, roles
Markers:
◦ home with children full or part-time
◦ primary care of children after separation
◦ secondary earner
◦ moves for payor’s career
◦ support for payor’s education/training
◦ work in family business
Implications:
◦ strong compensatory claim, higher in the range
◦ more likely to share post-separation income increases
◦ less impact of repartnering

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Divorce Act , s. 15.2(6)(a), (c)
Needs-based, “merger over time”
Need relative to marital standard
Markers:
◦ length of marriage/cohabitation
◦ drop in standard of living
◦ economic hardship
All to assess “interdependence”
Implications:
◦ assess usually on separation date incomes
◦ lower in range, but disability/extreme need often pushes higher
◦ more impact to repartnering

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Many reported decisions
SSAG often used, “ideal setting”
But remember: exception for compelling financial circumstances in interim
◦ SSAG amount may be too high; eg payor responsible for debts, mortgage, etc:
2011); Carrier v. Poon
Fyfe v. Jouppien
(NBQB 2013)
(ONSC
◦ SSAG may be too low, hardship, eg. short marriage, no kids: Singh (ONSC 2013)
Complex incomes, lack of accuracy: choose a number, can correct at trial
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Include interim in calculating duration

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One third of reported cases, except half in NB, NS
Wide range of cases, mix of compensatory and noncompensatory entitlement
◦ short, medium, long, no kids
◦ long with grown children
◦ medium length, wcs at time of separation, cross-over when cs ends
Exceptions more relevant in these cases
Court cases within formula range for amount 60% ON to 70% BC (90% in NB)
◦ but many fall within exceptions (noted or not noted)
◦ unusual facts
Duration often involves time-limits
◦ think about restructuring, lump sums
◦ indefinite with variation/review vs. long time-limits

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20 yrs or more
Majority of
ct. cases
Spousal support mixed with property issues, complex incomes
Duration generally indefinite in initial orders, not even many reviews (except BC)
Main issues on variation/review
◦ changing incomes, self-sufficiency
◦ repartnering, retirement

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0-9 yrs (similar issues for custodial payor )
Formula: low amount, short duration
Most settle: interim enough, time limit, lump sum
Few reported cases: atypical, formula result seems unfair (too low, too short)
Remember relevant exceptions!
◦ Compensatory exception in short marriages
◦ Compelling financial circumstances in interim
◦ Hardship in short marriages
◦ Immigration sponsorship
Good examples: RMS (BCCA 2011), Stergios v. Kim
(ONCA 2011), Singh (ONSC 2013)

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10-19 yrs
◦ medium length, no kids (non-compensatory)
◦ medium length with kids, cross-over to wocs when child support ends (compensatory & non-compensatory)
Issue is duration: formula generates time-limits; how to implement?
◦ many indefinite to begin, then short time limits/termination imposed on variation/review: over, terminate16 yrs after 16 yr marriage)
◦ but some longer time limits in advance,
2012), Zimmaro (BCSC 2013)
Domirti (BCCA 2010, cross-
Maher (NBQB
Most cases within ranges for duration: SSAG bringing structure to duration in medium length marriages
◦ high end of duration range in compensatory cases (crossovers); lower end of duration range (half length of marriage) in many non-compensatory cases
◦ disability may be an exception, no time limit:
(NBCA 2013), Van Rythoven
Leblanc
(2010 Ont.Div.Ct. 2010)

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Remember, when child support ends, need to switch to
formula for spousal support; retro calculations as well as ongoing support
Maher (NBQB 2012), Purgavie (ONSC 2012)
Duration: may now be time limits
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Remember s.15.3 exception, inadequate compensation, priority to child support
◦ Beck v. Beckett (ONCA 2011), Abernethy v. Peacock
(ONSC 2013)

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Leading case on when to use:
(ONCA 2011)
Davis v. Crawford
Lump sums based on SSAG, need time limits for duration; most often short, medium length marriages without children
If converting periodic to lump sum remember to discount for tax
Issue: additional 20% contingency discount in BC?
Marsh (BCSC 2012), Walker v. Brown (BCSC 2013)
In many cases, multiple purposes, no calculations

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Fewer “basic” formula cases, 45-55% more complex custody cases now shared custody, esp. in BC (30% of cases) custodial payor, esp. in Ont (20%)
90% fall within range for amount mid-range for 60% of outcomes
Duration generally consistent with SSAG, except short marriages, young children
More homogenous than
cases

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Problem of duration, not amount
Compensatory claims :
◦ Young children, disproportionate care
◦ More future disadvantage, than past
◦ Judges, lawyers underestimate loss
Do NOT tie duration to length of marriage
◦ Persistent pattern across provinces
 E.g. MacKenzie v Perestrelo (BCCA 2014)
◦ Age of children test more important
◦ Reviews rather than short time limits

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Large income disparities common (!)
Most fix child support at set-off
◦ Spousal support used to adjust living standards
Trend to equalise NDIs in Ontario, not BC
◦ E.g. Rankin (ONSC 2014); McMahon
◦ BC most mid or low-end SSAG?
(BCSC 2012)
Thompson (2013), 32 CanFLQ 315
Similar household living standards as guide
◦ Using child support, spousal support
SSAG range always includes 50/50 NDI split
◦ In bi-nuclear cases, starting point…
◦ In complex families, can use Schedule II adjusted
Duration can be important in these cases
◦ Reduced disadvantage going forward

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Hybrid, i.e. at least 1 child shared
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◦ Child support at set-off, spousal to adjust
With child support formula, mostly mid-range
Split custody
◦ Not equalise NDIs: Greig (ONSC 2014)
Step-children:
◦ With child formula, often hybrid custody
◦ Trade-off vs child support, Stadig (ONSC 2013)
◦ If only step-child, length of marriage re duration

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More frequent: NB 23%, ON 20%, BC 10%
Leading case:
(ONCA 2010)
Compensatory vs non-compensatory?
When? older children, disability, guys
(ONSC 2014): formula “harsh”?
◦ But reflects cost of children, length of marriage
Generous time limits, also indefinite
◦ Medium-to-long marriages
Note: is child support being paid or not?
Exceptions? disability, parenting?

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Used more frequently, but still missed:
Read Chapter 12!
Most common?
debt, interim, disability, hardship prior support, s. 15.3
Used more in
Driven by entitlement analysis, also practical adjustments cases
11 exceptions in all, not exhaustive
Unusual facts mean departures

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Compelling financial circumstances at the interim stage (SSAG 12.1)
Singh (ONSC 2013); Tasman v. Henderson (ONSC
2013); Fyfe v. Jouppien
(NBQB 2013)
(ONSC 2011); Carrier v. Ponn
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Debt payments (SSAG 12.2)
Dunn (ONSC 2011); Goodine (NSSC 2013)
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Illness and disability (SSAG 12.4)
Powell v. Levesque (BCCA 2014); Shen v. Tong (BCCA
2013); Leblanc (NBCA 2013);
(Ont.Div.Ct. 2010);
Van Rythoven
Knapp (ONSC 2014)
Tscherner v. Farrell (ONSC 2014);
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Prior support obligations (SSAG 12.3)
Newcombe (ONSC 2014)

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Compensatory exception in short marriages without children (SSAG 12.5)
R.M.S. v. F.P.C.S.
(BCCA 2011); Stergios v. Kim (ONCA
2011); Singh (ONSC 2013); Sidhu (ONSC 2014); Bhandal v.
Mann (BCSC 2012)
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Basic needs/hardship (SSAG 12.7)
Singh (ONSC 2013)
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Non-primary parent to fulfil parenting role (SSAG
12.9)
R.M.S. v. F.P.C.S.
(BCCA 2011); Kelly ( BCCA 2011); Osanlo v.
Onghaei (ONSC 2012)
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Special needs of child (SSAG 12.10)
Jans (Alta.Prov.Ct. 2013); Metzger (ONSC 2011)
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Section 15.3: inadequate compensation (SSAG
12.11)
Beck v. Beckett (ONCA 2011); Abernethy v. Peacock (ONCJ
2012)

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NOT a “cap”, just “ceiling” on formulas
Discretion once beyond $350,000
◦ ON, BC more likely to follow formula than MB, SK
Incomes closer to $350,000: often low to mid formula range incomes up to $500,000
Incomes above $500,000: “pure discretion”
Shorter marriages, more modest amounts
Large child support: moderate spousal?
Run various incomes, from $350,000 on up

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To vary, proof of “material change” required
Review: court can make term of order, reconsider after date/event, if uncertainty
SSAG formulas apply on variation, review
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But hard entitlement issues creep in…
Post-separation income increase
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Remarriage/repartnering of recipient spouse
Self-sufficiency of recipient
Retirement of payor
So greater discretion in use of SSAG

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Entitlement issue: share all, some or none of increase
Test: loose connection of increase to marriage:
◦ length of marriage
◦ roles during marriage (compensatory/non-comp)
◦ time elapsed since separation
◦ reason for increase
◦ together/support while education/training
AB more demanding, less so ON, BC

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Run alternative incomes, different sharing
Most likely to be shared:
◦ with child support cases
◦ compensatory claims generally
◦ medium and longer marriages
Delayed support claims:
◦ “SSAG don’t apply”: wrong
◦ E.g. Quackenbush (ONSC 2013)
◦ real issue incomes to be used, living standards
Flip side: post-separation reduction of recipient’s income, e.g. job/pay loss

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Issue of entitlement: its end
Initial time limits:
◦ without child support, custodial payor formulas
Time limits over time: both formulas
Self-sufficiency: common reason
Other reasons for ending entitlement: repartnering of recipient retirement

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No formulaic adjustment
◦ No automatic termination
◦ Entitlement compensatory or non-compensatory?
◦ Support continues longer, bigger if former
Alternatives to adjust :
◦ None (if compensatory, or partner low-income)
◦ Low end SSAG range
◦ Step-down order
◦ Below formula range
◦ Nominal support (in case)
◦ Termination/no entitlement
Need for “more guidance”:
See K.A.M. v P.K.M.
Colley (ONSC Quinn J)
, 2010 BCSC 93

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Relative concept, to marital standard
No “deeming”, realism needed:
A factor, not determinative:
Methods of encouraging:
Moge
Leskun
◦ Impute income to recipient: most common
◦ Increase support: education/retraining
◦ Review, or another review
◦ Reduce support/step-down: need to earn more
◦ Terminating review order
◦ Time limit
Dangers of double-counting
◦ e.g. impute and low end, or impute and step down

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Retirement usually a “material change”
Early retirement: may not be “change”
Reduced income, SSAG to reduce support
Division of property/pension important
(SCC 2001):
◦ no double-dipping of divided pension
◦ but broad exception for need
◦ both spouses to use assets to generate income
Entitlement often ends…

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SSAG formulas are gender-blind
Less bias: NB, ON, BC…
E.g.
More cases
2013 BCSC 204
Still unspoken “exception”?
No entitlement, lower amount, shorter duration
Higher expectations of self-sufficiency
(ONSC 2013): bad arguments, low
short!

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Shaping client expectations
Framing negotiations
More settlements, less litigation
Simplifying resolution of typical cases
◦ Smaller claims resolved, basic without child formula
Access to justice, esp. unrepresented
More structure for duration
Calculating lump sums
Isolating outlier decisions/patterns
Gender neutrality
Fewer “bad” agreements
Establishing a standard for appellate review
Providing structure for support analysis

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Skipping over entitlement
Defaulting to the mid-range on amount
Duration too short where young children
Failing to consider exceptions
Unsophisticated use generally
◦ Attempts to impute income
Seeking rules where SSAG leave discretion
◦ Defaulting to formulas for high incomes
More frequent claims for retroactive support
Unrepresented litigants:
◦ But now MySupportCalculator.ca

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Local guidelines, mostly temporary
◦ E.g. Santa Clara, Fairfax, Penn, Kansas
American Law Institute (2002)
Am. Ass’n of Mat. Lawyers (2007)
Mass (2011), NY (2010, temporary,…)
Other states
UK Law Commission Report (February 2014)
“Matrimonial Property, Needs, Agreements” recommends working group re formulas