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Spousal Support Advisory Guidelines – What They Are, and What They Do ?

Topic: Spousal Support. Tags: Spousal Support, Spousal Support Advisory Guidelines

The Spousal Support Advisory Guidelines are a tool for lawyers, judges and clients to arrive at a relatively predictable and fair result on the question of what support is appropriate as between spouses planning to divorce.

Although the Guidelines were put forth by the Canadian government (as part of a federal Department of Justice project), they are merely “advisory” in nature, meaning that they are neither legislated, nor mandatory. They are also not intended to be a complete code for determining support, but rather are designed to supplement the existing legislation and case law.

The Guidelines’ central theme involves income-sharing between spouses, so they provide a general “formula” to try to achieve that result. Note that the Guidelines facilitate “income-sharing” – not necessarily “equal sharing”. This means that the formula is intended to be a starting-point only; it allows for variations, exceptions, and adjustments. There are also certain built-in support-amount “ceilings” and “floors” to ensure that support amounts are ultimately fair for both parties. Finally, the Guidelines recognize that there may need to be a review or variation of spousal support entitlements/obligations in light of the subsequent remarriage, or where either of the parties have experienced a material change in circumstances.

In terms of the formula to be applied, there are two separate starting-points: one applies to the “without child support” scenario; and the other applies to the “with child support” scenario.

The “Without Child Support” Formula

As the name suggests, the “without child support” formula applies to spouses who are not paying child support, and hinges on the presumption that there is, over time, a “merger” between the parties to a marriage. In other words, the longer your marriage lasts, the more intertwined the economic and non-economic lives of the parties become. Against this background, the Guidelines’ “without child support” formula considers two key factors:

the difference in the gross income between the spouses; and
the length of your marriage (or, more precisely, the number of years of cohabitation).

Basically, the formula takes into account the difference between the spouses’ gross incomes, and factors in the length of marriage. Recommended spousal support levels and duration increase proportionately as both the income difference and the number of years of marriage increases.

However, there are also some exceptions, and some additional rules and adjustments that apply: for example, a spouse in a marriage of 20 years or longer in duration will be entitled under the advisory guidelines to indefinite support; so will a spouse whose age (at separation) together with the years of marriage add up to 65 or more. (This is called the “Rule of 65”, and only applies to marriages of 5 years’ duration or longer).

There are also other more esoteric variations as to amount of support and duration, depending on the circumstances. These include considerations such as:

the recipient spouse’s particular needs;
the outcome of any property division between you and your spouse;
the goal of fostering self-sufficiency between all spouses who divorce; and
the needs/ability of you or your spouse to pay in light of your existing financial and personal circumstances.

The “With Child Support” Formula

The underlying premise of the Guidelines’ “with child support” formula is that, in cases where one spouse is already paying child support for children of the marriage, the other spouse should receive a different spousal support amount than if no child support was being paid. It also presumes that child support is a priority, and that both parents – not just the support-paying one – are contributing to the cost of raising the children. And in contrast to the “without child support” formula, it focuses on post-separation childcare responsibilities, not on the length of the marriage.

Towards this end, the formula concentrates not on gross income, but rather on the after-tax, disposable income of the family. Applying the formula involves a detailed calculation which includes the following factors:

Both spouses’ individual net disposable income;
Deductions for any child support paid, and for taxes and deductions; and
Adjustments for government benefits and credits.

Essentially, and using all of these elements, the Guidelines amount aims to award the recipient spouse with spousal support that leaves him or her with between 40 and 46 percent of the spouses’ combined net disposable income, after child support has been taken out.

As before, there are certain exceptions and adjustments which may apply, including variations designed to acknowledge assorted shared custody arrangements that may exist between you.

Applying the Guidelines to Your Specific Scenario

As this brief outline should make clear, the Guidelines – while intended to provide some certainty to the process – do not involve a routine, formulaic approach to spousal support. (Nor, for that matter, do they address the pivotal question of whether support is owed from one of the parties to the other in the first place). Rather, the Guidelines are merely intended to provide broad guidance and to provide a framework for calculating the dollar-amount of spousal support in certain narrow, uncomplicated scenarios.

Your situation may be different, however: the straightforward application of the Guidelines may not fully address some of the important specific factors that pertain to you and your spouse. Indeed, it may be best for you and your spouse to opt out of the Guideline recommendations entirely, if that results in the fairest outcome in your particular case.

It is therefore important for you to obtain fact-specific guidance, and we would be happy to meet with you to carefully review your specific circumstances and to provide you with tailored legal advice.