Spousal Support Advisory Guidelines: The Revised User's Guide

12 Exceptions (SSAG Chapter 12)

If the formula ranges seem to produce intuitively “wrong” outcomes for amount or duration, you should think about exceptions and go to Chapter 12 of the SSAG. Eleven exceptions—recognized categories of departure from the formula outcomes—are listed there. Some of these exceptions are driven by an entitlement analysis that is not captured by the formulas; others are practical adjustments.

The exceptions are more likely to be needed under the without child support formula (and the custodial payor formula, which uses a hybrid version of the without child support formula) as its simpler formula does not respond as flexibly to the diverse fact situations in these cases.

Exceptions are the last step in a Guidelines analysis. First, location within the ranges can be used to adjust for some of the factors that underlie the exceptions. Second, restructuring provides another means to adjust amount or duration, above or below the ranges, while maintaining the consistency and predictability of the Advisory Guidelines. If neither of these steps can accommodate the facts of a particular case, then it may be necessary to resort to the exceptions.

There has been a steady increase in the use of the SSAG exceptions, better every year, and a growing body of case law applying them, including appellate level decisions (which will be reviewed below). But there are still too many cases where exceptions are missed. As a result, either no adjustment is made to the formula outcomes when one might be warranted, or if lawyers and judges don’t like the numbers generated by the formulas, they describe the Advisory Guidelines as being “of little assistance” and go back to budgets, or net incomes, or pure discretion, to come up with an outcome.

Finally, remember that departures from the formula outcomes are not restricted to the 11 identified exceptions. Family law is full of unusual and odd fact situations, no less so for spousal support cases. The SSAG formulas were devised for “typical” cases, to assist in their resolution. The Guidelines themselves are informal and advisory, which means that departures from the formulas can take place even if there is no listed “exception” in Chapter 12. When faced with unusual facts, some lawyers and judges try to jam them into the SSAG formulas anyway. Unusual facts demand a willingness to think “outside the formula ranges”, and even outside the listed exceptions. The kinds of factors that shape location in the range (see SSAG Ch. 9 and “Choosing Location in the Range”, above) may also, in some cases, push an award outside of the range.

As well, remember that the exceptions are not the only factors that can lead to a departure from the SSAG formula ranges. Departures may be justified when incomes are below the “floor” or above the “ceiling”, or if the recipient has remarried or repartnered, or if the payor has taken on second family obligations.

(a) Compelling financial circumstances at the interim stage (SSAG 12.1)

This exception was discussed above in “Application to Interim Orders”. It should be one of the most commonly-used exceptions, always on the radar screen on any interim support application.

(b) Debt payments (SSAG 12.2)

In most cases, marital debts are adequately taken into account in property division. It is only where debts exceed assets that the allocation of debt payments can have an impact on ability to pay. The debt payment exception is applicable only when debts exceed assets and, even then, only when debt payments are so large that they cannot be adjusted for by location in the range.

There is an overlap between this exception and the previous exception for compelling financial circumstances at the interim stage. At the interim stage one spouse’s assumption of greater responsibility for debt payment will likely be a more important factor—i.e. before property division has taken debts into account. One of the most common “compelling financial circumstances” under the interim exception is the payment of mortgages and other debts pending the trial or pending the sale of the house. The interim exception should be used in those cases, leaving the debt exception to apply at later stages.

Cases that openly discuss the debt payment exception include Marche v. Marche, 2009 NLTD 31; Van Wieren v. Van Wieren, 2008 BCSC 31; Seed v. Desai, 2014 ONSC 3329 (high debt load one factor leading to award below SSAG range); Dunn v. Dunn, 2011 ONSC 6899 (debt exception applied; husband’s income reduced by grossed-up amount of his debt payments, without much explanation or rationale, then low-end SSAG used on assumption that wife might not pay her share of joint debts, review in 5 years); R.M.S. v. F.P.C.S., 2011 BCCA 53 (payor wife cannot claim debt exception because received assets to cover debts in property division); and Goodine v. Goodine, 2013 NSSC 98 (husband left with large debts after property division, no ability to pay spousal support, debt exception explicitly relied upon).

Typically, the debt payment exception is argued by the payor to reduce spousal support below the SSAG ranges. However in H.M. H. v. J.R. H., 2015 BCPC 10, it was used to increase support payments above the SSAG range in a case where the recipient was responsible for debt repayment.

In some cases, courts will treat one spouse’s payment of an equalization payment over time, or the loan payments for such equalization, as a “debt”, and thus as a justification for a below-range amount of spousal support, but this is incorrect: see, e.g Wright v. Wright, [2008] O.J. No. 3118 (S.C.J.) (spousal support reduced well below range on account of equalization payments out of business income). In these cases, the spouse paying equalization by definition holds assets exceeding the equalization payment, and thus does not qualify under this exception.

(c) Prior support obligations (SSAG 12.3)

The exception for prior support obligations is often not mentioned, partly because this exception has a simple, mathematical adjustment in the software, an adjustment that just gets made with the simple input of the information. However, in some cases courts have done the adjustment manually: see Ponkin v. Werden, 2015 ONSC 791 (court discusses necessity of grossing up child support paid to prior children when doing the adjustment under the without child support formula). If the adjustment for prior support is not made, the spousal support  will be well above the correct range.

Usually this will be an adjustment for a prior obligation for child support: Lickfold v. Robichaud, 2008 CarswellOnt 6138 (S.C.J.) (no ability to pay spousal support after adjustment made). But every now and then, it will be a prior spousal support obligation: Robertson v. Williams, [2009] O.J. No. 5451 (S.C.J.) and Ponkin v. Werden, 2015 ONSC 791 (prior child and spousal support taken into account).

In most cases, these prior support obligations will involve actual payments of prior child or spousal support by the payor spouse. But a payor spouse might also have a prior child in his or her care, a child who is not a “child of the marriage” in the current case. In these cases, there can be a notional child support amount determined, and used for the adjustment (SSAG 12.3.3); see Ponkin v. Werden, above. In Newcombe v. Newcombe, 2014 ONSC 1094, where the court did its own SSAG calculations and explained them, the payor, who had his two young children from his prior marriage in his physical care for significant amounts of time, was given credit not just for child support paid, but also for notional child support in respect of the time the children were in his care.

In some cases the amount of the adjustment for prior support obligations can be quite high. In Ponkin v. Werdon, above, which involved a relatively short marriage under the without child support formula, the amounts of spousal support awarded after this adjustment were so low that the court relied upon the basic needs/hardship exception to award support above the SSAG range for part of the interim period.

Note that this adjustment to income to take account of prior support obligations applies only for the determination of spousal support under the SSAG. The full payor income must be used to determine child support, without any downward adjustment for prior support obligations. See Stadig v. Stadig, 2013 ONSC 7334 for a case where this error was made, although it did not, on the facts, affect the outcome.

Although it may be obvious, what is NOT included in this exception is “second families” or “subsequent children”. The “prior support” exception reflects the law’s general policy of “first family first”, especially where it is prior child support. There is no such consensus about support obligations towards subsequent spouses or subsequent children, and that is reflected in the discretionary approach in these cases, discussed below under “Second Families, or Subsequent Children”.

A couple of cases raise the possibility of departing from the formula range where the payor has been supporting his or her parents: Wang v. Seow, 2008 MBQB 218 and Seed v. Desai, 2014 ONSC 3329. As the categories of SSAG exceptions are not closed, on the particular facts of a case, there may be situations where support obligations towards other family members might be recognized.

(d) Illness and disability (SSAG 12.4)

Illness or disability is a frequent issue in the case law, and a common exception. Note that many disability issues can be resolved within the formulas. If it is a long marriage, then there will be a decent amount of support and an indefinite duration. If it is a marriage later in life, with an older recipient, the “rule of 65” may solve the duration issue, even if the amount isn’t so large. If the disabled individual has the primary care of the children, spousal support under the with child support formula will be indefinite (at least initially) and the amount will be generous.

The illness and disability “exception” will generally be relevant where the marriage is short-to-medium length and there are no children in the care of the recipient, but the disability is long-term. These will be cases that fall under the without child support formula or the custodial payor formula. The formulas produce ranges for amount and duration that may seem “too low” or “too short”, certainly to recipients. Payors will want to argue the formula ranges, primarily to time limit their spousal support in short-to-medium length marriages.

The law in these cases is particularly uncertain and confused, as the courts have not yet been able to work out a consistent approach. The Supreme Court of Canada addressed some of these issues in Bracklow, but we see the effects of its lack of guidance in these cases. Illness and disability is recognized as an exception in the SSAG, but the scope and operation of the exception is hard to nail down under the current law.

Cases involving permanent illness or disability in short and medium length marriages are “hard” cases and they are often litigated because they are difficult to settle. We thus have many reported decisions, but even with some appellate court rulings on the issue no clear approach has developed. There are still three common lines of decisions in the reported cases: (i) increase amount and extend duration; (ii) lower amount, extend duration; and (iii) no exception. The first and third are the most common. While factual differences may explain some of the differences in approach (for example, the length of the relationship or some element of compensatory entitlement in addition to non-compensatory), to a large degree the cases involve competing ideas about entitlement that are still being worked out in the courts.

  • Increase Amount, Extend Duration: Many courts respond to the greater need in disability cases by increasing the amount and extending the duration of support. The highest level court to adopt this approach is the Ontario Divisional Court in van Rythoven v. van Rythoven, 2010 ONSC 5923 (13-year marriage, wife mental health issues, time-limited support under 1996 agreement; spousal support awarded at upper end of SSAG range, no time limit based on husband’s current income of $95,000). Recent trial level decisions include: Knapp v. Knapp, 2014 ONSC 1631 (12-year marriage, initial order, high end, indefinite, but review); andAujla v. Singh, 2012 ONSC 5217 (5-year marriage, support higher than SSAG and indefinite).

    For earlier cases see: Rhynold v. Rhynold, [2009] O.J. No. 4339 (S.C.J.); Steele v. Steele, [2009] O.J. No. 2062 (S.C.J.); Shaw v. Shaw, 2009 NSSC 353; Smith v. Smith, 2008 CarswellOnt 1921 (S.C.J.); Lepp v. Lepp, 2008 BCSC 448; Mumford v. Mumford, 2008 NSSC 82; Pegler v. Avio, 2008 BCSC 128; Wilson v. Marchand, 2007 ONCJ 408 (although time limited, still beyond range); Peterson v. Peterson, 2007 SKQB 316; Bramhill v. Dick, 2007 BCSC 262; and Eng v. Eng, 2006 BCSC 1353.
  • Lower Amount, Extend Duration: Some courts will extend the duration of spousal support, even to be “indefinite”, while keeping the amount within the range, often at or near the low end. The Ontario Court of Appeal adopted this approach in Gray v. Gray, 2014 ONCA 659 (16-year marriage, spousal support not terminated after 16 years, low end, indefinite), but this was a “crossover” case that involved a strong compensatory claim and the court also relied upon the s. 15.3 exception. However, in Hickey v. Princ, 2015 ONSC 5596, reversing 2014 ONSC 5272, the Ontario Divisional Court adopted this approach in a purely non-compensatory case, where the trial judge on variation had reduced the amount of support because of the husband’s retirement and imposed a time-limited order that would have terminated support 17 years after a 17-year marriage without children. The Divisional Court allowed the appeal and removed the time limit, while leaving the amount the same, near the low end of the SSAG range.

    For trial level decisions see: Knapp, above (12-year marriage; if indefinite support had been ordered with no review, amount would have been at low end of range); M.E.K. v. M.K.K., 2014 BCCS 2037; Tscherner v. Farrell, 2014 ONSC 876 (17-year marriage, support indefinite but amount below SSAG range, unusual facts, custodial payor, recipient’s disability arising post-separation); Campbell v. Campbell, 2009 BCSC 1330; and Munro v. Munro, 2006 BCSC 1758.
  • No Exception: On this approach, disability cases are to be resolved within the formula ranges, for both amount and duration. In effect, courts adopting this approach do not recognize any disability exception. Amount and duration may be at the higher end of the range, but we see spousal support being time-limited or terminated in accordance with the formula ranges even though the disability is permanent. This is the approach that was recommended in the SSAG and that was reflected in the Bracklow decision on re-trial.

    At the appellate level, three decisions of the B.C. Court of Appeal offer examples of this approach: Shellito v. Bensimhon, 2008 BCCA 68(5-year marriage, no children, time limit imposed; amount above SSAG range; global amount above the SSAG range, but not that far above the maximum; also recipient able to return to employment); Shen v. Tong, 2013 BCCA 519 (7-year marriage; wife car accident, spousal support terminated after 4 years); and Powell v. Levesque, 2014 BCCA 33 (8-year cohabitation; spousal support terminated after 12 years of generous support; longer than SSAG but still termination). All of these cases involved relatively short marriages. In Depatie v. Squires, 2012 ONSC 1399 the Ontario Divisional Court upheld a trial judge’s order imposing a time limit of 9 years after a 12-year relationship.

    For recent trial decisions see: Morneau v. Morneau 2014 BCSC 2269 (termination 8 years after 8-year relationship); Soschin v. Tabatchnik, 2013 ONSC 1707 (11-year relationship, post-separation disability, lump sum based on mid-range for amount and duration); R.L. v. L.A.B., 2013 PESC 24, (termination 11 years after 15-year relationship; husband will retire; amount above SSAG range); and Este v. Blais, 2014 ONSC 5446, (9-year cohabitation, wife disabled, CPP $12,000, husband retires, spousal support to end after 6 years).

    For rarer cases with a time limit and the low end of the range, see B.M.P. v. S.L.B., 2015 BCSC 448 (7.5-year cohabitation, custodial payor, male claimant); Patel v. Patel, 2013 ONSC 2330 (custodial payor); and Wilson v. Wilson, 2009 BCSC 1021.

    For earlier cases see: Barton v. Sauve, 2010 ONSC 1072; Haggerty v. Haggerty, 2010 NSSC 9; T.J.M. v. C.R.M., 2009 BCSC 1122 (amount above range, but duration slightly below maximum); McFadden v. Sprague, [2009] O.J. No. 258, 2009 CarswellOnt 294 (S.C.J.); Rayvals v. Rayvals, 2008 BCSC 176; Rezansoff v. Rezansoff, 2007 SKQB 32; Williston v. Williston, 2006 BCSC 1869; Wise v. Wise, 2006 BCSC 945; and Puddifant v. Puddifant, 2005 NSSC 340.

Until appellate courts provide further guidance, these divergent approaches towards illness and disability will continue. As for us, we stated in the SSAG,“Our preference would be the … ‘no exception’ approach, which seems more consistent with the modern limits of spousal support as a remedy.” We will have to await further developments in the law.

Other issues in disability cases:

  • More complex issues of entitlement may arise when the disability occurs after separation; see Tscherner v. Farrell, above; Soschin v. Tabatchnik, above; and cases discussed below under “Changing Incomes”.
  • In disability cases where the payor is a custodial parent, the needs of children need to be balanced against the needs of the disabled spouse: see Tscherner v. Farrell,above; Patel, above;and Kuziora v. Fournier, 2012 ONSC 1569. See also the discussion of the custodial payor formula, above under “The With Child Support Formula”.
  • It is also important to note the income issues that can arise in disability cases. CPP disability payments are included in income but social assistance payments are not, even if labelled ODSP or AISH. Workers’ compensation benefits are included in income but are non-taxable, so will need to be grossed up. Most long-term disability insurance payments are also non-taxable, as it common for these insurance schemes to be employee-funded.

(e) The compensatory exception in short marriages without children (SSAG 12.5)

The without child support formula ranges are driven by the length of the relationship, as well as the gross income disparity. In shorter marriages, the formula assumes the sole basis for spousal support is non-compensatory, which then leads to a brief transitional award. Where there are compensatory claims in shorter marriages, an exception is required, to generate potentially larger and longer awards of spousal support.

There are typically, but not exhaustively, three situations where compensatory support can be claimed in shorter marriages without children.

  • The first, and most common in the reported decisions, is where the recipient spouse moves to marry the payor, giving up his or her job or career to do so. Two appellate level decisions have explicitly recognized the application of the compensatory exception in such circumstances. One is the decision of the B.C. Court of Appeal in R.M.S. v. F.P.C.S., 2011 BCCA 53. That case involved a three year marriage with two children. The husband, who had moved from Brazil, was awarded spousal support under the custodial payor formula in an amount higher than SSAG and for longer than three years. Two exceptions were relied upon: the compensatory exception in short marriages and the parenting exception (see below). The other is the decision of the Ontario Court of Appeal in Stergios v. Kim, 2011 ONCA 836 upholding the trial judge’s application of the compensatory exception on an extremely compelling set of facts that combined multiple compensatory claims. The case involved a short marriage that lasted less than five years where the wife had given up her job and moved from South Korea. Because the husband had withdrawn his immigration sponsorship of her, she was unable to work in Canada. In addition, however, during the first years of the marriage, while the parties lived in Korea, the wife and her parents had financially contributed to the development of the husband’s career potential. The husband had promised that he would do the same for the wife, by supporting her education after she moved to Canada. Five years of spousal support was awarded at an amount within the formula range for a 20-year marriage to allow the wife to go to university.

    For trial level decisions that have awarded spousal support above the SSAG ranges in such circumstances, either with or without explicit reference to the compensatory exception, see: Sidhu v. Sidhu, 2014 ONSC 2965 (short marriage, husband withdraws immigration sponsorship; wife gave up job that she can’t get back and has to travel back to India); Singh v. Singh, 2013 ONSC 6476 (short marriage, immigration sponsorship, explicit discussion of interim and hardship exceptions, could also be compensatory exception); Bhandal v. Mann, 2012 BCSC 1098 (no discussion of exceptions but interim exception and compensatory exception in short marriages would be applicable); Ahn v. Ahn, 2007 BCSC 1148; and Fuller v. Matthews, 2007 BCSC 444.
  • The second is where the recipient spouse has moved and given up or compromised his or her job or career, to facilitate the payor spouse’s job or career. An excellent analysis of such a case within this exception is Beardsall v. Dubois, [2009] O.J. No. 416, 2009 CarswellOnt 559 (S.C.J.) (wife left her employment to move to London where her husband had found employment).
  • The third is where the recipient spouse worked to put the other spouse through an education program, but the couple separates before the recipient spouse has been able to enjoy any of the benefits of the payor spouse’s enhanced earning capacity. The Ontario Court of Appeal decision in Stergios v. Kim, discussed above, also involved this situation.

(f) Property division: reapportionment (B.C.) (SSAG 12.6.1)

After the Draft Proposal, the British Columbia courts affirmed a spousal support exception in cases where a sufficiently large reapportionment order was made under the property provisions of the former Family Relations Act: Tedham v. Tedham, 2005 BCCA 502 and Narayan v. Narayan, 2006 BCCA 561. This exception applied only in B.C. because only in that province did the property statute permit reapportionment, or unequal division, on spousal support grounds.

In practice, there were very few B.C. cases that fell within this exception. Most often it was the equity in the matrimonial home that was reapportioned and the size of the reapportionment was not large enough to justify departing from the formula range. Typically the adjustment made for reapportionment was to fix an amount of spousal support at a lower point in the range than might otherwise have been the case, even the low end of the formula range, as was done in MacEachern v. MacEachern, 2006 BCCA 508. For a recent decision adopting this approach see Marquez v. Zapiola, 2013 BCCA 433.

With the proclamation of the B.C. Family Law Act, S.B.C. 2011, c. 25, in 2013, reapportionment on spousal support grounds has become “a more restricted discretion”, as the Court said in C.M. v. M.S., 2015 BCSC 1031. Section 95(3) of the Act makes reapportionment of property on spousal support grounds a residual remedy, only available if the spousal support objectives cannot be met through spousal support:

95(3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 have not been met.

This changes the remedial sequence and likely removes any need for a B.C. reapportionment exception as part of spousal support law.

(g) Property division: “Boston” (SSAG 12.6.3)

The Advisory Guidelines on amount and duration do not change the law from Boston v. Boston, [2001] 2 S.C.R. 413, governing “double-dipping”, mostly from pensions. Boston expresses an entitlement principle, as to what portion of a payor’s income is available to pay spousal support. Boston is, however, subject to a sizeable exception in cases of hardship or need. An extensive discussion of the complexities of this exception and the cases where an adjustment has been made to prevent “double-dipping” can be found under “Retirement” below.

(h) Property division: high property awards (SSAG 12.6.2)

There is no explicit exception for high property awards in the SSAG. The Advisory Guidelines can already accommodate many of the “high property” concerns: by imputing income, by choosing location within the ranges for amount and duration, by individualizing support determinations for payors above the $350,000 “ceiling”; and, in extreme cases, by finding no entitlement.

The law in this area remains unclear. The better view is that property and support are governed by distinctive laws and serve different purposes, so that a high property award should not in and of itself dictate no entitlement to spousal support. This view is reflected in the B.C. Court of Appeal decisions in Chutter v. Chutter, 2008 BCCA 507 (leave to appeal to the S.C.C. denied), and Bell v. Bell, 2009 BCCA 280.

But there is an inter-relationship between property and spousal support, which might in some cases warrant an outcome outside the SSAG ranges for amount and duration. In Chutter, where the Court of Appeal overturned the trial judge’s finding of no entitlement in the case of a long marriage where each of the parties was left with $4 million dollars in assets, the award of $2,800 per month was below the low end of the SSAG range.(In going below the range, the Court of Appeal also took into account that the wife had the benefit of sizeable RRSPs and was over-housed in her non-income-earning $1.9 million home, which muddied the outcome a bit.)

In Mudronja v. Mudronja, 2014 ONSC 6217 spousal support was ordered to terminate after the wife received an equalization payment of $1.8 million on the grounds that she would then have investment income in addition to an additional $1 million in assets. Spousal support had already been paid for 7 years since separation. Here we see income being imputed to the recipient from her receipt of an equalization payment and lump sum retroactive support.

(i) Basic needs/hardship (SSAG 12.7)

This exception recognizes the specific problem with shorter marriages (1-10 years) under the without child support formula (and the custodial payor formula which is built around the without child support formula) where the recipient has little or no income and the formula is seen as generating too little support for the recipient to meet his or her basic needs for any transitional period that extends beyond the interim exception. The exception allows for awards higher in amount than the SSAG ranges, enough to meet basic needs, but does not allow for an extension of duration.

This exception is intended to apply only where other exceptions—such as the interim exception, the illness and disability exception and the compensatory exception in short marriages—are not applicable and where restructuring does not provide an adequate solution. When this exception was recognized in the SSAG we contemplated a very narrow scope for its operation, and we thought it would arise mostly in bigger cities, where basic needs are most expensive.

To date this basic needs/hardship exception has not been used very often and the majority of the cases where it has been used it have involved interim support and combined reliance on this exception and the interim exception; see Carty-Pusey v. Pusey, 2015 ONCJ 382; Ponkin v. Werden, 2015 ONSC 791; and Tasman v. Henderson, 2013 ONSC 4377. For one example of its use outside of the interim context see Simpson v. Grignon, [2007] O.J. No. 1915, 2007 CarswellOnt 3095 (S.C.J.).

One area where we contemplated that this exception might apply is the immigration sponsorship cases; see Carty-Pusey, above(but interim exception also applicable).

(j) Non-taxable payor income (SSAG 12.8)

Both formulas produce a “gross” amount of spousal support, i.e. an amount that is deductible from taxable income for the payor and included in taxable income for the recipient. But some payors have incomes based entirely or mostly on legitimately non-taxable sources such as:

  • workers’ compensation
  • disability payments
  • income earned by an aboriginal person on reserve
  • some overseas employment arrangements.

In determining income, this non-taxable income will have been grossed-up (as discussed under “Income” above). However, in these cases where the payor’s income is based almost entirely on non-taxable income, the payor is unable to deduct the support paid, contrary to the assumption built into the formulas for amount. In most cases, the recipient of spousal support will still have to include the support as income and pay tax on it. Under this exception, it will be necessary to balance the tax positions and interests of the spouses.

For examples of the fact situations covered by this exception, see Paul v. Paul, 2008 NSSC 124 (both aboriginal, neither paying taxes, amount below low end of range) and James v. Torrens, 2007 SKQB 219 (aboriginal payor earning income on reserve).

There are also a number of self-adjusting mechanisms at work under both formulas that may limit the need to resort to this exception, described more fully in the SSAG itself. Note in particular that there will be no need to do any adjustment for non-taxable income in cases under the with child support formula because the calculations under that formula work with net incomes: see Fiddler v. Fiddler, 2014 ONSC 4068.

(j.1) Payor resides in country where no tax deductibility for support

Here we wish to identify a variant on the non-taxable payor income exception. Non-taxable income means a payor does not obtain the benefit of tax deductibility for spousal support payments. But a payor can lose out on tax deductibility in another way, by residing in a country where domestic law does not permit deductibility of spousal support. As with the non-taxable income exception, the Canadian recipient will still have to declare the support as income and pay taxes on that income.

Many countries do allow deductibility, like the U.S., France, Italy and Spain. But many others do NOT allow the payor to deduct spousal support, notably the United Kingdom, Australia, Mexico, Japan and Korea (Germany and Israel only allow a limited deduction).

This creates a similar problem to that seen above for payors with non-taxable income and warrants a similar exception and solution.

(k) Non-primary parent to fulfil parenting role (SSAG 12.9)

This exception arises under the custodial payor formula in shorter marriages on a specific set of facts, to justify increased spousal support for parenting purposes. There are three requirements for this exception:

  • the recipient spouse and non-custodial parent must play an important role in the child’s care and upbringing after separation
  • the marriage is shorter and the child is younger
  • the ranges for amount and duration are low enough and short enough under the formula that the non-custodial parent may not be able to continue to fulfil his or her parental role.

Some of these cases involve illness or disability, as that explains the non-custodial status of the recipient spouse. But in such cases, this exception should be considered first, before reaching the more common illness and disability exception.

This parenting exception has now been recognized in two appellate level decisions, both decisions of the B.C. Court of Appeal. R.M.S. v. F.P.C.S., 2011 BCCA 53 involved a very short, three year marriage with two children. The father, who had moved from Brazil, exercised substantial access. Two exceptions were relied upon to justify an award of spousal support in an amount higher than the SSAG and for longer: the compensatory exception in short marriages and the parenting exception. At para 80 of her reasons, Justice Smith noted that the parenting exception is focussed on the recipient’s parenting role, and is most often used to extend the duration of spousal support until the children are older and parenting functions are reduced. She added that it may also be used to augment the amount of support if the recipient does not have the financial resources to meet the demands of parenting. At para 83 she stated:

This exception is not aimed at compensating the recipient. Nor is the goal to ensure that both households have the same level of income. Rather, it works to ensure that the non-primary parent has the resources needed to fulfil their parenting duties. This might encompass ensuring the children have adequate housing or transportation between houses.

R.M.S. was followed in Kelly v. Kelly, 2011 BCCA 173, which involved a seven year marriage in which the children remained with the father. The mother was awarded spousal support higher than SSAG and for longer, with explicit reference to the parenting exception. On the facts the mother had a relatively low income and her difficulties in fulfilling her parenting role were exacerbated by high access costs. Both R.M.S. and Kelly referred to an earlier Ontario trial level decision, Petit v. Petit, [2008] O.J. No. 5437, 2008 CarswellOnt 8257 (mobility case, children moved with husband, support to wife increased above range to adjust for cost of travel for access in northern Ontario).

Other trial level decisions using this exception include Osanlo v. Onghaei, 2012 ONSC 2158 (exception not explicitly relied upon but non-custodial mother who had been primary caregiver awarded support higher than SSAG range, her need to provide accommodation suitable for children) and Mumford v. Mumford, 2008 NSSC 82 (married 16 years, 14-year-old with husband, wife with parenting time, mental health issues for wife, spousal support above range, duration set at maximum).

(l) Special needs of child (SSAG 12.10)

A child with special needs can raise issues of both amount and duration of spousal support, issues that can often, but not always, be accommodated within the ranges. In some cases, the duration of spousal support may have to be extended and/or the amount may have to be increased above the upper end of the range.

The leading case on this exception is now the decision of the Manitoba Court of Appeal in Remillard v. Remillard, 2014 MBCA 304 where the court overturned a trial decision that both imputed income to the wife, who had custody of the parties’ severely disabled child, and imposed a five year time-limit on support after an 11-year marriage. The wife had a new relationship and a new child and was not working outside the home. The Court of Appeal found that the trial judge’s award failed to adequately reflect the wife’s entitlement to compensatory support and over-emphasized self-sufficiency. Given the child’s needs, it was unrealistic to expect the wife to work and become self-sufficient in five years. Relying explicitly on the special needs exception, the court awarded indefinite support, subject to review or variation. (The amount of the award was reduced $1000 below the SSAG mid-range to take into account the wife’s repartnering.)

For trial level decisions see E.B.G. v. S.M.B., 2015 BCSC 541 (special needs child, time limit in consent order varied, indefinite, no explicit reference to special needs exception); Krause v. Zadow, 2014 ONCJ 475 (10-year marriage, 3 children, 2 special needs, separation agreement provides for amount higher than SSAG; husband’s income decreases, wants reduction and time limit on spousal support; no basis for imputing income to wife given needs of children; no time limit; explicit reference to special needs exception); Jans v. Jans, 2013 ABPC 1999 (Down’s Syndrome child, husband almost no access, spousal support higher than SSAG, no explicit reference to exception); Yeates v. Yeates, [2007] O.J. No. 1376, 2007 CarswellOnt 2107 (S.C.J.), affirmed on appeal 2008 ONCA 519 (wife with care of disabled children, spousal support well above range); and Frouwes v. Frouwes, 2007 BCSC 195 (wife no entitlement to spousal support, where wife delayed claim and custodial husband bears full costs of children with special needs).

(m) Section 15.3: inadequate compensation (SSAG 12.11)

The full title for this exception is “section 15.3: small amounts, inadequate compensation under the with child support formula”. Section 15.3 of the Divorce Act requires that child support be given priority over spousal support, which can mean little or no spousal support, even in cases where there is a strong claim for compensatory support, especially where there are more children requiring care; see C.E.A.P. v. P.E.P., 2006 BCSC 1913 (compensatory entitlement recognized, 4 children, but SSAG shows zero amount for spousal support; no spousal support ordered, no ability to pay). Section 15.3 goes on to recognize that as child support is reduced or terminated there will be increased ability to pay and thus an ability to satisfy unmet claims for spousal support which have been held in abeyance or only partially met while child support was being paid. For a nice example of the operation of s. 15.3, see Beck v. Beckett, 2011 ONCA 559 (at trial no spousal support while child support being paid, by time of appeal no more child support, on appeal child support order replaced with spousal support order for mid-range SSAG).

This exception recognizes that after child support ends there may still be unmet compensatory claims and that duration under the SSAG may need to be extended to provide adequate compensation to the recipient. This exception will usually arise in a variation context in longer marriages with children, when child support ends and there is a crossover from the with child support formula to the without child support formula (see SSAG 14.5 and below under "Crossovers Between Formulas When Child Support Ends"). In many cases the without child support formula will be able to respond adequately to the past priority given to child support and the recipient's unmet compensatory claims. The amount of support may be increased under the without child support formula and for marriages of 20 years or longer, duration will be indefinite. However, where the marriage is under 20 years in length, the time limits under this formula will become applicable, with the maximum duration being the length of the marrriage. For these cases, the effect of the exception will be to extend the duration of spousal support beyond the upper limit of the length of the marriage.

We now have an appellate level decision explicitly relying upon this exception, the decision of the Ontario Court of Appeal in Gray v. Gray, 2014 ONCA 659. This was a crossover case where child support had ended. Spousal support had already been paid for 16 years after a 16-year marriage with four children. The wife had not worked outside the home since shortly before the separation because of health problems. The husband’s application to terminate child support was combined with an application to either terminate spousal support or keep it at the existing very low level, while the wife sought continued spousal support in an increased amount. The wife was found to have continuing entitlement on both non-compensatory and compensatory grounds. The amount of support was increased to the low end of the SSAG range on an indefinite basis. In justifying this result the Court of Appeal recognized that the amount of the original order reflected the priority given to child support. In not imposing a time limit, the Court explicitly referred to both the disability exception and the s. 15.3 exception. The low end of the range was ordered to reflect this extension of duration, as well as the husband’s second family obligations.

In Gray the Court of Appeal drew upon an earlier decision in Abernethy v. Peacock, 2013 ONSC 2045, upholding 2012 ONCJ 145, a case where the wife had a very strong compensatory claim following a 16-year marriage and where the s. 15.3 exception had been explicitly relied upon to extend the duration of spousal support after child support ended.

(n) Other grounds for departures, “new exceptions”

The eleven “exceptions” listed in the SSAG represent recognized grounds or “categories” of departure from the formula ranges. But the Guidelines are informal and advisory, which means that departures from the formulas can take place even if there is no listed “exception” in Chapter 12. The listed “exceptions” do not exhaust the possible reasons for departing from the formula ranges.

The SSAG formulas were devised for “typical” cases, and the unusual facts of a particular case may require a departure from the formula ranges, e.g. the unusual mortgage arrangements made after separation in S.S.V. v. G.J.V., 2009 NBQB 195 (husband jointly purchased home and co-signed mortgage); or the wife’s permanent arrangement to live with her mother, thereby lowering her expenses in Schloegl v. McCroary, 2008 BCSC 1722 (amount lower than low end of range). One might also imagine exceptional cases involving usually high medical expenses for either the payor (limiting ability to pay) or the recipient (increasing need).

The kinds of factors that determine location in the range (SSAG Ch. 9) may also, in some cases, push an award outside of the range in extreme or unusual circumstances. Just think of the debt payments exception. For another example, employees have recently been called upon to pay much larger mandatory pension contributions in order to cover pension fund deficits, contributions that may be large enough that the payor lacks the ability to pay the spousal support amounts under the formulas and thus an outcome below the range may be warranted. (Remember that mandatory pension contributions are not treated as deductions for SSAG calculations.)

It is impossible to conjure up the many and various ways that spousal support cases can be unusual or atypical, and thus demand a departure from the SSAG ranges.

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