Spousal Support Advisory Guidelines: The Revised User's Guide
4 Agreements (SSAG 5.2)
(a) SSAG as a backdrop to negotiation
The interaction between the Advisory Guidelines and spousal support agreements has two different dimensions. One is the use of the SSAG in applications to override or set aside spousal support agreements, which will be discussed below. The other is the important role of the SSAG as a backdrop to settlement; indeed one of the primary objectives of the SSAG is to provide more structure and certainty for the negotiation and mediation of spousal support issues.
These two dimensions are related: given the clarification of the norms of spousal support in the SSAG, we are now seeing fewer really “bad deals” and thus fewer Miglin challenges to agreements.
Over time more and more agreements explicitly incorporate the SSAG; see for example Swallow v. De Lara, 2009 BCSC 911 (agreement providing for an annual recalculation of spousal support at the SSAG midpoint).
(b) Existing legal framework for overriding or setting aside agreements
It is now fairly well understood that the SSAG, being advisory only, cannot be used to re-open spousal support agreements:
- with respect to “old”(i.e. pre-SSAG) agreements, the creation of the SSAG does not amount to a “material change”; and
- more importantly, the SSAG give no power to invalidate or override prior agreements
A final agreement—i.e. one waiving or time limiting spousal support or fixing a lump sum—will preclude the application of the Advisory Guidelines unless the agreement can be set aside or overridden under the existing legal framework found in: (i) contract law (including the doctrines of duress, unconscionability and undue influence), (ii) provincial legislation or (iii) the Divorce Act.
With respect to the applicable law under the Divorce Act:
- in the context of an initial application under s. 15.2 in the face of a “final agreement”, the two-part Miglin test applies to determine the weight to be given to the agreement and whether a court may “override” (not “set aside”) the agreement.
- agreements providing for variation or review are not “final agreements” and hence Miglin is not applicable; in these cases a court is being asked to apply the agreement, not override it. (For use of the SSAG in these cases see “Variation and Review” below.)
- remember that as a result of the Supreme Court of Canada’s decision in L.M.P. v. L.S., 2011 SCC 64, applications under s. 17 for variation of consent orders, including agreements incorporated into court orders, are now dealt with under the framework for variation, with a threshold test of “material change”, and not under the Miglin framework. (Consent orders and the SSAG are dealt with below under “Variation and Review”.)
However, a spousal support agreement does not make the SSAG entirely irrelevant, as some lawyers think. The Advisory Guidelines can be helpful in dealing with specific issues within the Miglin analysis, i.e. in the context of an initial application for support under the Divorce Act after a final spousal support agreement, and also in challenges to spousal support agreements under provincial legislation.
(c) Use of the SSAG in a “Miglin” analysis
The Advisory Guidelines can be helpful in three ways in a Miglin case:
(1) At the first stage of the Miglin analysis, the SSAG ranges can be used to assess whether the agreement was in “substantial compliance” with the objectives of the Divorce Act at the time of negotiation. The courts are clear that the fact an agreement provides for less than the SSAG is not in and of itself a reason to set aside the agreement and that the Advisory Guidelines result must be balanced with respect for the parties’ own assessment of a fair outcome as reflected in their agreement or the value they may have placed on reaching an agreement and not litigating: see Turpin v. Clarke, 2009 BCCA 530 (Miglin stage 1 test of substantial compliance does not mean departure from SSAG will be reason to override agreement); Duncan v. Duncan, 2012 ONSC 4331; and Virc v. Blair, 2012 ONSC 7104. For example, an agreement with time-limited spousal support that comes close to the low end of the SSAG ranges for amount and duration might substantially comply.
However, a significant departure from the SSAG may be useful in illuminating a failure to comply in a broad sense: see the recent decision of the B.C. Court of Appeal in S.E. v. J.E., 2013 BCCA 540 in which a trial judge was found to have erred in applying Miglin to uphold a lump sum spousal support agreement because he failed to test the lump sum for substantial compliance. The Court of Appeal drew on the SSAG in reaching this conclusion, stating:
 … I am not suggesting that when a court is assessing whether an agreement substantially complies with the objectives of the Divorce Act, the effect of the agreement must be explicitly compared to the results indicated under the SSAG. Parties can legitimately negotiate valid agreements that depart from the Guidelines, particularly when other issues are being resolved. But in this case, such a comparison does illuminate, in broad terms, the degree to which this agreement shows a significant variation from what the SSAG suggests as an appropriate award.
See also Quelch v. Quelch, 2012 BCSC 667 (agreement providing for support of limited duration and less than half the SSAG mid-range after a 28 year marriage, too significant a departure from SSAG with no justification) and Jones v. Lamont, 2014 BCSC 1456 (modest lump sum does not meet wife’s compensatory claim after 28-year marriage). The case law shows that complete waivers of spousal support are often fairly easily overridden or set aside, especially where there are children: see Veneris v. Veneris, 2015 ONCJ 49; Dhillon v. Dhillon, 2014 ONSC 5608; Cuffe v. Desjardins, 2013 ONSC 4044; G.G. v. M.A., 2014 BCSC 1023; and S.L.C. v. C.J.R.C., 2014 BCSC 1814.
When doing an assessment of the agreement in light of the SSAG ranges at Miglin stage 1, remember restructuring: an agreement that seems to be inconsistent with the SSAG on amount may in fact be more consistent if duration and restructuring are taken into account: see Van Erp v. Van Erp, 2015 BCSC 203 and Ball v. Ball, 2012 BCSC 227.
(2) If you get to the second stage of Miglin, the SSAG ranges for the parties’ current circumstances can offer some insight into whether there has been any “departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act”. A result that differs significantly from the SSAG, particularly one that leaves the support claimant in circumstances of economic hardship, might support a finding that such a result could not have been reasonably contemplated by the parties.
(3) If the court does decide to override the final agreement in a Miglin case, the SSAG ranges can assist in determining the amount and duration of spousal support; see Veneris, above (interim spousal support ordered in face of marriage contract with waiver; low end of range to take account of agreement); Cuffe v. Desjardins, above (lump sum based on high-end SSAG ordered after spousal support waivers under marriage contract and separation agreement overridden under Miglin); Krpan v. Krpan, 2013BCSC 1020 (mid-range SSAG on interim); and Oostenbrink v. Oostenbrink, 2013 BCSC 514 (SSSAG mid-range).
However, consistent with Miglin, the parties’ intentions as reflected in the agreement may continue to influence the appropriate spousal support outcome. The prior agreement may affect location within the range (see Soschin v. Tabatchnik, 2013 ONSC 1707); or lead to an award below the SSAG ranges (see G.G. v. M.A., above and Jubinville v. Jubinville, 2013 BCSC 2262).
(d) Use of SSAG in challenges to agreements under provincial legislation
We have focussed on the use of the SSAG in a Miglin analysis, but the SSAG may be similarly useful when applying the tests for setting aside spousal support agreements under provincial legislation and in determining the amount of spousal support if the agreement is set aside: see Ashton v. Ashton, 2015 BCSC 790 (mid-range SSAG awarded after separation agreement set aside under s. 164(5)(e) of the B.C. Family Law Act).
(e) Additional reference material
For a review of the Miglin case law up to 2011 see Carol Rogerson “Spousal Support Agreements and the Legacy of Miglin” (2012), 31 Canadian Family Law Quarterly 13.
For a discussion of the treatment of consent orders see Rollie Thompson, “To Vary, To Review, Perchance to Change: Changing Spousal Support” (2012), 31 Canadian Family Law Quarterly 355.
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