Family Courts in Toronto and Ontario Reference New Spousal Support Guidelines
A new Federal Government proposal calls for a radical change in the way Canadian Spousal Support awards are to be determined. This proposal is already having immediate impact in family law courts in Toronto and the rest of Ontario.
The Spousal Support Advisory Guidelines Proposal, released in January 2005, attempts to bring much-needed predictability and certainty to the Courts' determination of spousal support entitlement, quantum and duration.
Two different formulas are suggested - one for families with dependent children, and a different approach for those without dependent children, as will be explained below.
Guidelines are advisory - not mandatory
Currently, the proposed Guidelines are not mandatory, and represent an approach which the Courts may choose to consider in exercising their existing discretion as to spousal support claims.
Families without Dependent Children
Under the Guideline proposal, where there are no dependent children, spousal support is to be calculated at 1.5% to 2% per year of marriage of the difference between the parties' gross incomes to a maximum of 50% for marriages of 25 years duration or longer.
To determine what support, within this range, is appropriate and how long it is to be payable, Courts will consider a number of factors.
These include the duration of the marriage, whether it is appropriate to compensate a spouse for negative economic consequences from the marriage, the need for financial support, a spouse's contribution to the enhancement of the other spouse's earning potential, any illness or disability, any imbalance in responsibility for the family's debts, and legal obligations to support other dependents.
Spousal support is to be payable for .5 to 1 year of support for each year of marriage. Support to terminate at this cut-off date.
Support to be indefinite (no end date) for marriages over 20 years, or under the "Rule of 65," where the total of the recipient's age and the years of marriage exceed 65.
Families with Dependent Children
Where children continue to be supported after a separation, the starting-point for calculation is each spouse's individual's net disposal income (INDI), or the amount remaining after payment or receipt of child support, income taxes and other allowable deductions.
A support order is to be made which provides between 40% and 46% of the two parties' combined INDI to the recipient spouse.
To determine what support, within this range, is appropriate and how long it should be payable, Courts will consider a number of factors, including the duration of the marriage, decisions made within the family to meet the childrens' needs which affected the recipient's earnings and income-generating potential, the childrens' ages and needs, whether it is appropriate to compensate a spouse for negative economic consequences from the marriage, the need for financial support and the ability to pay support, the parties' standard of living prior to separation, a spouse's contribution to the enhancement of the other spouse's earning potential, any illness or disability, any imbalance in responsibility for the family's debts, and legal obligations to support other dependents.
For shorter marriages of under ten years, support will terminate, at latest, when the last child of the family completes high school.
For long-term marriages of 20 years duration or less, it is proposed that support be payable up to one year for each year of marriage, or until the last child of the family completes high school, whichever is longer.
Support is to be payable indefinitely for marriages over 20 years, or under the "Rule of 65," where the total of the recipient's age and the years of marriage exceed 65.
The proposed guidelines may represent a small step forward in regularizing spousal support awards ny Family Courts in in Toronto and throughout Canada, but certainly do not eliminate all uncertainty or the ongoing discretion of judges in deciding this issue.
Unlike the Child Support Guidelines, which provide a specific table amount for a child support Order based on the payor's income, number of children and Province of residence, the proposed spousal support changes will do little to provide complete predictability as to the amount of support to be paid and the duration of payment.
Having said that, the consistent application of a specified formula will, over time, probably reduce the disparity between court awards in similar circumstances, and narrow the guesswork currently involved in anticipating likely outcomes in Applications for spousal support.
Will Judges use the Guidelines? In Toronto and the Greater Toronto area, the Guidelines are now regularly referenced. Our office, as a matter of course, now prepares computer-generated Spousal Support Guideline calculations for all matters where spousal support is an issue.
Time will tell how far the influence of the Guidelines will spread in Family Law Courts, but if the Child Support Guideline experience of the mid 90's can provide any historical reference, our anticipation is that over time, Judges will increasingly clarify and adopt the overriding principles set out in the Guidelines.
In Toronto and Ontario, generally, the emerging trend in this direction is already clear.
- Garry J. Wise, Toronto
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