The New Spousal Support Guidelines
On January 26, 2005, the Federal Department of Justice released its draft advisory spousal support guidelines. The purpose of the guidelines is to provide some consistency to one of the most vexing and unpredictable areas of the law.
Spousal support is traditionally the most difficult — and often the last – issue to resolve in a family law dispute. This may be due to the fact that it provides the arena in which feelings of blame, guilt, fear and anger play out. In addition, there have been so many historical swings in the treatment of spousal support that clients have difficulty understanding and accepting why their support order may be so much different than their brother’s or sister’s support order of five or ten years ago.
Both lawyers and clients have also had to deal with the uncertainty that arises because of the fact that the size of spousal support awards vary with the geographic location of the courts and the tendencies of individual judges within those courts. Traditionally, courts in the GTA make much higher awards than courts in the rest of the province. The spousal support guidelines are intended to reduce these variations through the use of formulas that, while not binding on a court, at least provide a “starting point” for determining a range of support either in court or negotiations.
Essentially, under the proposed formula, if a couple does not have children, support is calculated by first determining the difference in the spouses’ gross incomes and then multiplying that difference by 1.5 % or 2 % for every year of cohabitation. A couple who has cohabited for 10 years and has a difference in income of $30,000 will find that the spouse with the higher income will pay between 15 and 30 percent of that difference as spousal support, which translates into support ranging between $4,500 and $9,000 per year.
The length of time support is to be paid is calculated by multiplying the number of years of cohabitation by .5 or 1. In our example, support would last for between 5 and 10 years and be in an amount between $375 and $750 per month. If a couple has cohabited for over 20 years, then the percentage changes to a range between 37.5% to 50%. If the couple has cohabited for longer than 25 years, support will last indefinitely. The percentages will be determined by such factors as the age of the parties, whether one party has assumed more debt or other existing support obligations to third parties.
There are also different and quite complicated formulas for situations involving children. In such situations, the amount received will be based on the recipient spouse receiving a proportion of the parties’ combined net disposable income.
Unlike the child support guidelines, the spousal support guidelines are true guidelines. They provide a range of numbers in order to provide some individualized justice, as opposed to the child support guidelines which abandoned the concept of individual justice in favour of what might be called “average justice.”
Unfortunately, unlike the child support guidelines, there is no convenient table or grid where a person can look up a number for the amount of support. In fact, in the case of spousal support where there are children, the formula is so complex that couples will still need to consult with lawyers to obtain an accurate estimate of possible support payments.
From our preliminary examination of the draft formulas, we can say that it appears that, under the guidelines, spousal support orders for people who are married less than 20 years will be lower and the duration of the support obligation will be shorter than currently ordered by courts in Toronto, especially if there are no children.
Keep two things in mind however: these formulas are drafts only and these formulas are advisory only. They will not be legislated as the child support guidelines were. They will not bind the courts. Most importantly, they will not give a person a basis to go to court to change his or her current spousal support order.
It is expected that judges and lawyers will increasingly rely on the formulas prescribed by the final version of the guidelines to give spousal support a context within which to be determined. Couples will still argue over issues such as proper determination of income and whether support should be at the lower or higher end of a range, but the guideline formulas will give them (and their lawyers) a better idea of what to expect in the event of separation.
The proposed guidelines are not the final product and the authors invite comments. We anticipate the final version will be released within twelve to fourteen months.
If you require further information about spousal support please contact either Nicola Savin or Jacqueline Peeters.Share