Spousal Support Advisory Guidelines July 2008
GLOSSARY OF TERMS
- Advisory guidelines:
Guidelines, for the determination of support, that are not legislated or mandatory but non-legislated, informal and voluntary in nature, sometimes called "true guidelines" to distinguish them from the Federal Child Support Guidelines, which are legislated and mandatory. Generally a shorthand reference to the Spousal Support Advisory Guidelines proposed in this document.
An agreement or contract between the spouses, usually in writing, setting out their respective rights and obligations during their marriage or upon marriage breakdown. The agreement may be negotiated by the spouses on their own, with their counsel, or through mediation. For the purposes of these Advisory Guidelines, the agreement would include terms affecting spousal support or child support or both, as well as terms concerning custody, access, parenting and division of family property. Usually the agreement will be in the form of a separation agreement. The agreement may or may not be incorporated into a "consent order." (See also consent order.)
Under the Advisory Guidelines, to determine spousal support, the income level for the payor spouse above which the income-sharing formula no longer applies and any additional level of support is determined on a discretionary basis.
- Child of the marriage:
Under the Divorce Act, a child of the spouses who, at the material time, is under the age of majority, or is the age of majority or over but unable by reason of illness, disability, education or other cause, to support himself or herself. Included is a step-child or other child, for whom one parent or both stand in the place of a parent. Sometimes the term dependent child is used to describe a "child of the marriage."
- Child support:
An amount of money paid by one parent to the other for the support of a child. Under the Federal Child Support Guidelines, there is a presumption that this amount consists of the "table amount" of support, determined by the child support tables, plus any contribution to section 7 "special or extraordinary expenses" such as child care, some education and medical expenses, or certain extracurricular expenses. (See also table amount of child support and special or extraordinary expenses.)
- Computer software:
Programs intended to assist family law lawyers, judges, mediators and others to calculate child support and spousal support. In Canada three software programs are currently available: DIVORCEmate, ChildView and, in Quebec, Aliform.
- Compensatory support:
Spousal support intended to compensate spouses for the economic consequences of the marriage. Compensatory support is typically awarded to recognize the economic losses one spouse has incurred as a result of the marriage and marital roles such as the loss of earning capacity, career development, pension benefits, etc. because of a decision to withdraw from the labour force for family reasons. Compensatory support may also be awarded, however, to compensate one spouse for economic benefits conferred on the other spouse during the marriage such as financial support for professional training. Compensatory support also includes spousal support intended to recognize the economic impact of post-divorce child-care responsibilities on a custodial parent, most commonly limitations on employment. (See also non-compensatory support.)
- Consent order:
An order made by the court based upon the agreement of the spouses. The agreement may take the form of a separation agreement, minutes of settlement, or an agreement stated on the record in court.
- Corollary relief:
The technical term used by the federal Divorce Act to describe orders for custody and access, child support and spousal support.
Under the Advisory Guidelines, refers to the situation where one spouse applies to vary spousal support after child support has ceased and the with child support formula is no longer applicable, to bring spousal support under the without child support formula.
The proceeding in which legally married spouses are divorced under the federal Divorce Act. Often, the term is used to describe the divorce judgment granted at the same time that corollary relief is granted. The divorce takes legal effect 31 days after the divorce judgment. (See also corollary relief.)
When spousal support is paid on a monthly basis, the length of time for which spousal support is to be paid. Duration may be indefinite or time-limited. Duration may be changed upon subsequent review or variation. (See also indefinite and time-limited.)
- Durational factor:
Used in the without child support formula under the Advisory Guidelines, to determine the percentage of income to be shared, based upon the length of the marriage. The durational factor is 1.5 to 2 percent of the gross income difference for each year included in the length of marriage. (See also length of the marriage.)
This is the threshold question in spousal support of whether a spouse has any claim to spousal support at all. After entitlement has been established, issues of amount and duration can be addressed. The issue of entitlement can arise in any context where spousal support is in issue — interim support, initial orders or agreements for support, or reviews or variations of existing support orders.
Under the Advisory Guidelines, a recognized category of commonly recurring facts or circumstances that may justify a departure from the amount or duration of spousal support that would otherwise be determined under the formulas.
- Family net disposable income:
A measure of the net disposable income of the recipient spouse, which includes both spousal and child support received by that spouse. It measures the net disposable income of the whole family, including that of the spouse and the children, available to meet their needs. For the payor spouse, his or her net disposable income is the same whether described as family net disposable income or individual net disposable income, as both child and spousal support paid are always deducted. (See also net disposable income and individual net disposable income.)
- Federal Child Support Guidelines:
Regulations under the federal Divorce Act setting out the rules and tables that determine how much child support a spouse or parent must pay. Most provinces and territories have similar child support guidelines under their family laws, except for Alberta. Quebec has a different scheme of child support guidelines, which applies to determine child support for residents of Quebec.
Under the Advisory Guidelines, the income level for the payor spouse below which the formulas do not apply.
Under the Advisory Guidelines, the specific method of calculating the amount and duration of spousal support for a category of cases, including the percentages of income to be shared. (See also with child support formula and without child support formula.)
- Global amount:
Under the Advisory Guidelines, the total dollar amount of spousal support payable under the formula when amount is multiplied by duration — the monthly amount can be multiplied by the number of months of duration for which it is paid — to produce this global amount. No adjustment is made in this raw calculation for any discount, present value or tax adjustment.
- Government benefits and refundable credits:
A category of income that includes the federal Child Tax Benefit, the National Child Benefit, the GST credit, the refundable medical credit and various provincial benefit and credit schemes.
- Gross income difference:
Under the Advisory Guidelines, the difference between the gross or Guidelines incomes of the spouses, which forms the basis for the percentage division under the "without child support" formula. (See also Guidelines income.)
- Grossed-up amount of child support:
Child support is not tax deductible for the payor parent, which means that child support is a "net" amount, paid out of the parent’s after-tax income. In certain cases where gross income is used in the advisory guidelines, it is necessary to gross up the amount of child support, e.g. under the custodial payor formula or the exception for prior support obligations. To gross up child support, the parent’s marginal tax rate is used to calculate a before-tax or gross amount. Software programs can be used to assist in this calculation.
- Guidelines income:
A measure of gross income, as defined in the Federal Child Support Guidelines, including the adjustments found in Schedule III to those Guidelines.
- Income sharing:
A formulaic method used to determine the amount of support to be paid, either spousal support or child support, based upon the incomes of the parents or spouses, rather than expense budgets, budget deficits, or some other method.
Spousal support that has no limit on its duration but is subject to review or variation. Indefinite support does not necessarily mean permanent support, as the amount may be varied over time and the support obligation may even be terminated. Under the Advisory Guidelines, there are two tests for indefinite support: where the length of the marriage is 20 years or longer, or where the rule of 65 applies. (See also rule of 65.)
- Individual net disposable income (INDI):
A spouse’s individual net disposable income reflects the net disposable income available to the spouse after deducting his or her contributions to child support. For the recipient spouse, individual net disposable income will be the net disposable income, including any spousal support received, after deducting the payor’s child support paid as well as the recipient’s notional table amount of child support plus any contributions by the recipient to special or extraordinary expenses for the child or children. For the payor spouse, his or her individual net disposable income will be the net disposable income after payment of both child support and spousal support. (See also family net disposable income, net disposable income, notional table amount of child support, and special or extraordinary expenses.)
- Initial order:
The order for custody, child support or spousal support made at the time of the divorce or, in some cases, the first order made thereafter. Sometimes referred to as an "original order" and to be contrasted with subsequent orders made on variation or review. Not to be confused with interim orders. (See also interim support, variation and review.)
- Interim support:
An order for child support or spousal support or both, made after a divorce proceeding has been commenced, based upon limited evidence and intended to operate on a temporary basis until the divorce and initial order for corollary relief. An interim support order can be revisited and revised at any time, up to and including the divorce and initial order for corollary relief. (See also corollary relief, divorce and initial order.)
- Length of the marriage:
Under the Advisory Guidelines, the total period of time the spouses have cohabited, including any periods of pre-marital cohabitation and ending at the time of separation.
- Lump sum spousal support:
Spousal support can be paid on a periodic basis, e.g., monthly amounts, or it can be paid in a lump sum, usually just one or a few payments. Lump sum payments are not tax deductible for the payor and are not treated as taxable income for the recipient.
- Net disposable income:
An after-tax measure of income, after inclusion and deduction of the amounts more fully described in Chapter 6. The starting point is Guidelines income, to which government benefits and refundable credits are added and from which income taxes and other deductions are then subtracted. For the payor spouse, child and spousal support paid is deducted. For the recipient spouse, spousal support will be included, but child support received may or may not be included, depending upon whether the measure is family net disposable income or individual net disposable income. (See also family net disposable income, government benefits and refundable credits, Guidelines income, and individual net disposable income.)
- Non-compensatory support:
Spousal support based on need and dependency, apart from any compensatory considerations. In its 1999 decision in the case of Bracklow, the Supreme Court of Canada held that the spousal support objectives of the Divorce Act were not exclusively compensatory, but also encompassed non-compensatory purposes.
- Notional table amount of child support:
The table amount of child support that a spouse would pay under the Child Support Guidelines, based upon the spouse’s income, even though that amount is not actually being paid to the other spouse. The notional table amount is used as a proxy or adjustment in the with child support formula to reflect the spouse’s direct spending upon a child as a custodial parent. (See also table amount of child support.)
- Prior support obligation:
An obligation to pay child or spousal support for a child or spouse from a prior relationship, when determining child or spousal support to be paid upon the breakdown of a subsequent marriage. Prior support obligations are an exception under the formulas.
- Property division:
Each province and territory has its own statute that provides for the division of family or marital or matrimonial property between spouses upon separation or divorce. Court orders and agreements thus often deal with property division, as well as custody and access, child support and spousal support. Provincial/territorial laws vary in their details. Property to be divided will typically include the family home, its contents, pensions, motor vehicles, investments, bank accounts, etc. Typically, debts will also be considered as part of the property division.
- Provincial/territorial family law:
Under the Constitution, the federal government has legislative responsibility for divorce, reflected in the federal Divorce Act. The Divorce Act deals with custody, child support and spousal support for divorcing spouses. All other family law matters fall under the legislative responsibility of the provinces and territories. Provincial/territorial family law is set out in the statutes of each province or territory and the titles of those statutes vary from province to province, e.g. in B.C., the Family Relations Act or in Ontario, the Family Law Act and the Children’s Law Reform Act. These provincial/territorial family laws deal with custody and support issues for separated but not divorced married spouses, as well as cohabiting partners and unmarried parents. The division of family property in all cases, including divorcing spouses, is a matter for provincial/territorial family law.
A Latin term, used by lawyers and judges, which means the amount of support to be paid, as opposed to the duration of that support. "Quantum" thus usually refers to the monthly amount of spousal support.
Under the Advisory Guidelines, the upper and lower limits for the amount of spousal support, or the duration of spousal support, as determined by the appropriate formula. The formulas generate ranges for amount and duration, rather than precise numbers as under the Federal Child Support Guidelines.
Under the Advisory Guidelines, the trading-off of amount against duration to restructure the outcomes generated by the formulas. Restructuring may be used in one of three ways: (1) to increase the amount of spousal support and shorten duration; (2) to extend duration and reduce the monthly amount; or (3) to formulate a lump sum by multiplying amount by duration. In restructuring, the global amount of support remains the same. (See also global amount and lump sum spousal support.)
A proceeding, provided for by the terms of an order for support that involves the return of a support issue to the court for review, without the need for either spouse to prove a material change of circumstances. A review is thus different from a variation. A review term in a support order will usually direct the timing of the future review. It may attach conditions to be satisfied by one or both of the spouses prior to the scheduled review. It may also direct the issues to be determined and the evidence to be provided at the review. (See also variation.)
- Rule of 65:
Under the Advisory Guidelines, one of the tests for indefinite spousal support under the without child support formula, calculated by adding together the age of the support recipient at the time of separation and the length of the marriage in years. (See also length of marriage.)
- Shared custody:
Defined in section 9 of the Federal Child Support Guidelines as a situation where each spouse
"exercises a right of access to, or has physical custody of, a child [of the marriage] for not less than 40 per cent of the time over the course of a year.";
- Special or extraordinary expenses:
Expenses for children listed in section 7 of the Federal Child Support Guidelines, to which both parents will generally contribute based upon their respective incomes. Included in these expenses are: child care expenses; child-related medical and dental insurance premiums; certain health-related expenses; extraordinary expenses for primary or secondary education or specific educational programs; expenses for post-secondary education; or extraordinary expenses for extracurricular activities. The presumptive amount of child support to be paid under the Federal Child Support Guidelines consists of the table amount of child support plus the payor’s contribution to any s. 7 expenses.
- Split custody:
Defined in section 8 of the Federal Child Support Guidelines as a situation "where each spouse has custody of one or more children" of the marriage.
Under the Divorce Act, spouse means a legally married spouse. Generally, the term "spouse" also includes a person who is a former spouse. At the time of writing, the Divorce Act definition of spouse had not been amended to include spouses in same-sex marriages but the term will encompass them if such an amendment is made. Under provincial/territorial family law, the definition of "spouse" varies, but generally has been extended to include certain "common law" or cohabiting couples who are not legally married. Provincial/territorial law may also extend support obligations to certain relationships other than spousal relationships, such as civil unions or same-sex partnerships.
- Table amount of child support:
The basic amount of child support that a payor parent is required to pay under the Federal Child Support Guidelines, based upon the child support tables. The table amount is determined by the payor’s Guidelines income, the number of children and the appropriate province/territory, usually the province/territory in which the payor spouse resides.
- Time limit:
Sets a specified or limited period of time during which the monthly amount of support is to be paid. (See also duration.)
An application by a spouse, after an initial order has been made, to vary or change the terms of a previous order, including the terms relating to child or spousal support. Variation applications are governed by section 17 of the federal Divorce Act. There may be a number of variation orders granted over time between spouses or former spouses. In order to obtain a variation, the spouse will have to establish a material change in circumstances since the making of the most recent previous order.
- With child support formula:
The formula under these Advisory Guidelines for calculating amount and duration of spousal support that applies in cases where there are dependent children and hence where there is a concurrent child support obligation to a child or children of the marriage. (See also formula, child of the marriage and without child support formula.)
- Without child support formula:
The formula under these Advisory Guidelines that applies in cases where there are no dependent children and hence where there is no concurrent child support obligation to a child or children of the marriage. This formula applies not only to marriages where there were no children of the marriage, but also to marriages where there were children, but the children are no longer dependent. (See also formula, child of the marriage, and with child support formula.)
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