Legal Insights

High-range spousal support is an increased amount of spousal support versus the mid-range or low-range amount. High-range spousal support is not routinely ordered; however, an award of high-range of spousal support may be appropriate and reasonable in certain circumstances. Generally, a recipient spouse will have to prove that there is a good reason why they should be awarded high-range spousal support. Chapter 9 of the SSAG lists the following non-exhaustive factors that determine location within the ranges provided: Strength of any compensatory claim; Recipient’s needs; Age, number, needs, and standard of living of children (if any); Needs and ability to pay of payor; Work incentives for payor; Property division and debts; and, Self-sufficiency incentives. Factor 1/7: Strength of any compensatory claim Spousal support may be compensatory (meant to compensate the recipient for some economic detriment suffered) or non-compensatory (involving claims based on need) in nature. A strong compensatory claim indicates that both amount and duration (length of time spousal support should be paid) should be at the higher end of the range. Factor 2/7: Recipient’s needs If the recipient has reduced income and/or earning potential because of age or other factors, the award of spousal support may be higher in...

Factor 3/7: Age, number, needs, and standard of living of the children A child with special needs, or a young child, will usually require more time and resources from the care-giving parent which will indicate a spousal support award in amount and duration at the high end of the range. A low standard of living or lower income levels also indicates a spousal support award at the high end of the range. Factor 4/7: Needs and ability to pay of payor If the payor spouse has high need and low ability to pay, this may indicate an award of spousal support at the low end of the range. Factor 5/7: Work incentives for payor Some types of employment are associated with significant expenses that are not covered by the employer or reflected in income or deductions from pay, such as parking, cost of commuting, tools, and so on. If a payor has significant expenses associated with his employment, then this may be a factor indicating the low end of the range is appropriate. Factor 6/7: Property division and debts A low amount of property to be divided would suggest an award at the high end of the range while a large amount...

The Spousal Support Advisory Guidelines (SSAG) are guidelines that underpin the calculation of spousal support. The final version of these guidelines were released in 2008. The SSAG have not been legislated by any level of government. In other words, the SSAG are not law. Rather, they are guidelines. Even though they are not binding law, lawyers and judges regularly rely on the SSAG (Fisher v. Fisher, 2008 ONCA 11). According to case law judges must consider these SSAG on an initial application for support. The SSAG also have a role to play on variation applications of spousal support; however, in variation cases there may be complicating factors that a court must consider before applying the SSAG wholesale. The Spousal Support Advisory Guidelines: The Revised User’s Guidelines (which are sometimes called the “RUG”) were released in April of 2016 and update the SSAG. The RUG do not provide a comprehensive review of all case law relating to the SSAG since 2008. However, the RUG focuses on leading appellate and trial decisions since the release of the SSAG in 2008. The SSAG and DivorceMate are closely connected as DivorceMate is a computer program that provides calculations based on the SSAG. Family lawyers and judges in...

Courts take a different approach in making a ruling on temporary spousal support during a motion than the approach taken on a determination of a final award of spousal support at a trial. Specifically, in determining whether a party is responsible to provide his/her spouse with temporary or interim spousal support, the Court will look to cases such as Thomas v. Thomas and Hughes v. Hughes. The jurisprudence (i.e. case law) conveys that an award of temporary spousal support should seek to allow the recipient to obtain support from the date of the commencement of the litigation until the final trial. An adjudicator should primarily take into account the needs and means of the recipient of support, and attempt to place the parties on equal ground with respect to the financial support available to them individually. Interestingly, if a party feels as though he/she is disadvantaged due to the unlimited resources available to their counterpart, they may apply to the Court for “advance costs" to fund the litigation and place the parties on relatively equal ground. However, a motion for “advance costs” should not be relied on and should only be used in extreme cases, as Justice Gates pointed out in the case...

Unlike Child Support, concrete legislation does not exist with respect to Spousal Support. Instead, the legal realm has come to rely on the Spousal Support Advisory Guidelines (SSAG). The fact that judges do not have the law to resort to when faced with the issue of spousal support, has proven difficult for the courts in determining the duration of spousal support. In the case of Bracklow v. Bracklow, the Court conveyed the notion that circumstances where one of the parties are disabled or struggle with ill health, does not always require his/her spouse to pay lifetime spousal support. Although, it is interesting to note that the case of Bracklow did not involve a long-term marriage. The SSAG dictate that a marriage that has lasted for 20 years or more will result in an obligation of “indefinite” spousal support. Justice Beryl MacDonald analyzes the term “indefinite” in his ruling in Bridgen v. Gaudet as follows: "I realize there are many who suggest there is a compensatory element to be considered because of the existence of a long-term relationship. I have some difficulty with that analysis although there is support for it in Bracklow (see "Spousal Support Post-Bracklow: The Pendulum Swings Again?", Carol...

When a court orders that one of the parties are entitled to a specific amount of spousal support in accordance with the SSAG, the Court will also award a lump sum retroactive spousal support award from the date of the application until the present day. The first issue is how the Court determines said amount. At first glance, it seems reasonable and obvious that the Court would multiply the amount awarded in spousal support per month by the amount of months in arrears. However, in reality, that is not a fair and reasonable figure as it does not take into account the fact that monthly spousal support payments are deductible to the payor and taxable to the recipient. Therefore, decisions such as Hume v. Tomlinson, Elgner v. Elgner, and Vanasse v. Seguin, stress that the Court has an obligation to consider the tax consequences when ordering a lump sum retroactive spousal support award. In Thompson v. Thompson, the Court explained its position on the matter as follows: "The quantification of retroactive spousal support, the range that is generated by the SSAG must be adjusted because these ranges are based upon periodic ongoing payments which are presumed to be taxable in...