Spousal Support Advisory Guidelines: The Revised User's Guide

7 The Without Child Support Formula (SSAG Chapter 7)

In cases where there are no dependent children, the without child support formula applies. This formula covers a wide range of fact situations: marriages of every length—short, medium and long—in which there were no children; and long marriages where the children are now adults. As well, in cases involving medium length marriages with children the initial determination of support will take place under the with child support formula, but once the children are independent, there may be a crossover to this formula (SSAG, 14.5, and below).

This formula relies heavily upon length of the relationship to determine both the amount and duration of support. Both amount and duration increase with the length of the relationship. This formula is constructed around the concept of merger over time which offers a useful tool for implementing the mix of compensatory and non-compensatory support objectives in cases where there are no dependent children.

In short and medium length marriages without children the primary basis for entitlement will be non-compensatory and the formula generates transitional awards, with the length of the transition period proportionate to the length of the relationship. In longer marriages the basis for entitlement will vary depending upon the facts; it may be primarily non-compensatory (marriages without children), or a mix of compensatory and non-compensatory (marriages with grown children and crossover cases).

Some of the more difficult issues under this formula will be discussed in more detail below, but here we first offer some reminders about the application of this formula:

  • In calculating the length of the relationship, be sure to include periods of pre-marital cohabitation. Also, the period ends with the date of separation (not divorce). Thus the length of the relationship runs from the start of cohabitation to the date of separation.
  • If there is any period of separation during the relationship, followed by a reconciliation and continued cohabitation, then the cumulative total of the periods of cohabitation will most often be the appropriate way of calculating the length of the relationship, not just the last period of cohabitation; see Broadbear v. Prothero, 2011 ONSC 3636 and R.L. v N.L., 2012 NBQB 160. However unusual circumstances, such as an extremely lengthy period of separation, may require a different approach.
  • It is important to identify the basis of entitlement when using this formula, whether it is non-compensatory, compensatory or a mix (see SSAG Ch. 4 and “Entitlement” above). This is important for determining location within the range, and also for determining whether or not there is an exception that warrants an award outside the range.
  • Determining location in the range is in important issue, given the diverse array of fact situations this formula covers. The mid-range should not be the default. (See SSAG Ch. 9 and ”Choosing Location in the Range” below).
  • Although the formula works with gross income figures, it is always important, in determining a precise amount of support within the range, to do a “reality check” by looking at net disposable income positions after payment of a given amount of spousal support, particularly in cases of long marriages.
  • Note that an equalization of net income “cap” is part of the formula for amount (SSAG, 7.4.1). This “cap” applies to long marriages of 25 years or more, where the range for amount is 37.5 to 50 per cent of the gross income difference. The “cap” implements the idea that the recipient should never receive an amount of spousal support that will leave him or her with more than 50 per cent of the spouses’ net disposable income or monthly cash flow. The software programs can calculate this net income cap with precision and will present the cap as the upper limit of the range. (For those without software, or without more precise net income calculations, the net income cap can be estimated crudely by hand, at 48 per cent of the gross income difference. This “48 per cent” method is a second-best, but adequate, alternative.)
  • If the ranges generated by the formula seem inappropriate, consider restructuring (SSAG Ch. 10 and  “Restructuring” below) and exceptions (SSAG Ch. 12 and ”Exceptions” below); they will have their primary application to cases under the without child support formula.
  • In cases involving longer marriages, many of the difficult issues will arise in subsequent applications for variation and review to address things like changing incomes over time, the self-sufficiency of the recipient, retirement and repartnering, all addressed below in separate sections of this User’s Guide.

(a) The problem of limited awards in short marriages without children (SSAG 7.4.2)

Under the without child support formula short marriages generate very limited awards, if there is entitlement at all, even in cases where there is a significant income disparity. In many cases the modest amounts generated by the formula will be restructured into a lump sum or a very short transitional award. This result is consistent with current law and generally raises no problems; see Newcombe v.Newcombe, 2014 ONSC 1094. Identified exceptions will cover most of the short marriage cases where the formula range seems inappropriate. These exceptions are discussed in detail below and will simply be flagged here:

  • Remember the compensatory exception (SSAG 12.5 and  “Exceptions” below) which applies to short and short/medium length marriages without children where there are significant compensatory claims that are not adequately redressed by the modest amounts generated by the formula which are intended to satisfy claims that are non-compensatory and transitional in nature. These compensatory claims may involve :
    • an economic loss, for example moving and/or leaving a job to marry or to facilitate the other spouse’s employment; or alternatively
    • restitutionary claims, based on contributions to the other spouse’s education or professional training, followed by separation before the supporting spouse has a chance to enjoy any benefits of the enhanced earning capacity.

These compensatory claims need to be assessed on an individualized basis.

  • The interim exception for compelling financial circumstances (SSAG 12.1 and  “Application to Interim Orders” above) may also be applicable in short marriage cases where the amounts generated by the formula do not provide realistic amounts to deal with the immediate transitional needs resulting from the marriage breakdown.
  • The basic needs/hardship exception (SSAG 12.7 and “Exceptions” below) recognizes the specific problem with shorter marriages (1-10 years) 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. One area where this exception can apply is immigration sponsorship cases (see immediately below).
  • The disability exception (see SSAG 12.4 and “Exceptions” below) may also be applicable in short marriages where the recipient has a longer-term illness or disability.

(b) Short marriages: immigration sponsorship cases

One category of short marriages, those involving immigration sponsorship agreements, raise some unique issues under the without child support formula. These are cases where a marriage breaks down while a sponsorship agreement is in place. Most spousal sponsorship agreements now run for a period of 3 years, but in the past the duration was as long as 10 years. In some cases involving very short marriages, courts have used the duration of the sponsorship agreement as the appropriate measure for the duration of spousal support, thus extending duration beyond the durational ranges generated by the Advisory Guidelines. As well, in such cases, some courts have also ordered support in an amount beyond the high end of the range to generate an amount of support that will meet the recipient’s basic needs and preclude resort to social assistance. See Gidey v. Abay, [2007] O.J. No. 3693 (S.C.J.); T.M. v. M.A.G., 2006 BCPC 604; Singh v. Singh, 2013 ONSC 6476; and Carty-Pusey v. Pusey, 2015 ONCJ 382.

Some of the identified exceptions may be relevant in these cases to justify a departure from the formula ranges and have certainly been relied upon by judges:

  • the exception for compelling financial circumstances in the interim
  • the compensatory exception in short marriages
  • the basic needs/hardship exception

However, although the case law on this issue is not settled, it does appear that the sponsorship agreement may be an independent factor in short marriages, leading to either an amount or duration outside the formula ranges.

Note that in some immigration sponsorship cases entitlement may be an issue. Despite the sponsorship agreement there may be a finding of no entitlement: see Mazloumisadat v. Zarandi, [2010] O.J. No. 252 (S.C.J.) (1 year marriage, no entitlement because husband told wife not to come) and Merko v. Merko, 2008 ONCJ 530 (very short marriage; economic lives never intertwined, each party no income).

(c) Time limits under the without child support formula (SSAG, 7.5)

Do not ignore duration. We have found that the without child support formula is widely used to determine amount, but that duration is often ignored. This is a misapplication of the formula. Amount and duration are interrelated parts of the formula: see Domirti v. Domirti, 2010 BCCA 472. Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10 and “Restructuring” below), or a finding that the facts of the case require an exception (see SSAG Ch. 12 and “Exceptions” below).

This formula generates time limits when the relationship is under 20 years in length and the rule of 65 is not applicable. There is increasing acceptance of the appropriateness of time limits, particularly when the basis of entitlement is largely non-compensatory and the purpose of the award is to provide a transition to a lower standard of living: see Fisher v Fisher, 2008 ONCA 11 (7 years of support after 19-year marriage with no children; within global range after restructuring). One of the achievements of the SSAG has been to bring greater structure to the issue of duration in medium-length marriages, under both this formula and the with child support formula.

  • Remember that time-limited orders are subject to variation if there has been a material change in circumstances: see Fisher v Fisher, 2008 ONCA 11; Fewer v. Fewer, 2005 NLTD 163; Bastarache v. Bastarache, 2012 NBQB 75; and R.L. v N.L., 2012 NBQB 160.
  • The durational limits need do not necessarily require time-limited initial orders, but can be used in a “softer” way to structure the on-going process of variation and review (see immediately below).

Implementing the durational limits under the without child support formula. Time limits under this formula can be implemented in different ways. While shorter durations (under 10 years) are more easily implemented through time limits set out in initial orders, the longer durational ranges may seem less amenable to initial time limits. However, time limits under this formula may be used in a “softer” way, similar to the use of the durational ranges under the with child support formula, to structure the on-going process of review and variation. While the initial order is indefinite, perhaps subject to a review, a time limit or termination may be imposed on a subsequent review or variation.

  • For cases where time limits have been set in initial orders, see Fisher, above, (7 years of support after 19-year marriage with no children, within global range after restructuring); Zimmaro v. Smee, 2013 BCSC 381(18-year relationship, no children, 4 years further support after almost 5 years of interim); R.L. v. L.A.B., 2013 PESC 24 (15-year marriage, no children, 3 years further support after 8 years interim, 11 years total); Tamaki v. Dahlie, 2012 BCSC 1917 (18-year marriage, no children, 4.5 years support plus 4.5 years interim, 9 years total); Soschin v Tabatchnik, 2013 ONSC 1707 (11-year relationship, no children, lump sum based on mid-range amount and duration); Friedl v. Freidl, 2012 ONSC 6337 (time-limited order for 7 years after 25-year marriage; 10 years total with interim; no compensatory claim, only non-compensatory); and Bastarache v. Bastarache, 2012 NBQB 75 (18 year duration fixed after 18-year marriage, 13 years lump sum retro plus further 5 years time-limited, subject to variation). As noted above, the potential risks associated with a longer-term fixed duration can be ameliorated by the possibility of a variation application if there has been a material change in circumstances.
  • For cases where the durational limits have been applied in the context of subsequent variation or review, see Kerman v Kerman, 2008 BCSC 500; Hanssens v. Hanssens, 2008 BCSC 359; Kelly v. Kelly, 2007 BCSC 227; Gammon v. Gammon, 2008 CarswellOnt 6349 (S.C.J.)(10 year total duration after 15-year relationship with no children; termination date set 4 years after separation on variation application after husband retires); Bourque v. Bourque, 2008 NBQB 398 (16 year total duration set after 17-year marriage; termination date set on review application 9 years after separation); Maber v. Maber, 2012 NBQB 337 (crossover, variation; 2 more years support; 18 years total after 18-year marriage); Domirti v. Domirti, 2010 BCCA 472 (crossover, review, support terminated 16 years after 16-year relationship). Other good examples under the custodial payor formula are Puddifant v. Puddifant, 2005 NSSC 340; and R.L. v N.L., 2012 NBQB 160 (16-year relationship; review 8 years after separation; support for further 8 years, subject to variation.)
  • In general, awards in highly compensatory cases (eg. crossovers) tend to be at the longer end of the duration range and those in many non-compensatory cases (eg. where the purpose of the award is to provide a transition from the higher, marital standard of living) at the shorter end of the duration range. But in cases of illness and disability, extreme need may push awards to the longer end of the duration range or even beyond.
  • The disability exception (see SSAG 12.4 and “Exceptions” below) may result in an extension of support beyond the durational ranges under the without child support formula as may the s. 15.3 exception in crossover cases (see “Crossovers Between Formulas When Child Support Ends” below).

SSAG durational ranges too long? In some cases courts have ordered spousal support for periods of time below the low end of the SSAG ranges. Some of these cases are simply examples of restructuring where the award is still within the global ranges, see Fisher, above, (7 years of support after 19-year marriage with no children; within global range after restructuring); Mercel v. Bouillon, 2012 ONSC 6557 (support after 14-year common law relationship should be indefinite because of “rule of 65” but above SSAG amount paid for many years; support terminated after 17 years). However, the B.C. Court of Appeal, in two recent decisions, has suggested that non-compensatory claims based solely upon drop in standard of living warrant only limited “transitional” awards, even in long marriages, and that the SSAG ranges may be too long: see Lee v Lee, 2014 BCCA 383 and Kirton v. Mattie, 2014 BCCA 513. It is not clear at this point whether these decisions just reflect fact-specific rulings or suggest more significant shifts in thinking about entitlement that will influence the duration of awards.

(d) Long marriages and indefinite support

  • The meaning of “indefinite” support. Duration under this formula is indefinite” when the relationship is 20 years or longer or when the “rule of 65” applies (see immediately below). Many misinterpret this term. Indefinite support does not necessarily mean permanent support. It only means that no time limit can be set at the time of the order or agreement. And it certainly does not mean that support will continue indefinitely at the level set by the formula, as such orders are open to variation and review as circumstances change over time. The SSAG use the term “indefinite (duration not specified)” to convey that indefinite orders are subject to variation and review. Variation and review may subsequently result in time limits or even termination as a result of changing incomes, retirement, repartnering, or self-sufficiency considerations, all of which we discuss below in separate sections of this User’s Guide. For a good discussion of the meaning of “indefinite” support see Banziger v. Banziger, 2010 BCSC 179.
  • When a support award is “indefinite”, recipients are under an obligation to make reasonable efforts toward their own self-sufficiency, even if they cannot attain full-self-sufficiency, and a failure to make reasonable efforts may result in imputing income and a reduction of support on a subsequent review or variation. (See SSAG Ch.13 and “Self-sufficiency” below.)

(e) Duration and the “rule of 65” (SSAG 7.5.3)

When determining duration under the without child support formula, even if the relationship is under 20 years in length, indefinite support may be appropriate under the “rule of 65” which applies if the length of the relationship in years plus the recipient’s age at the date of separation equals or exceeds 65. For two recent appellate level decisions applying the “rule of 65” see Djekic v. Zai, 2015 ONCA 25 (8-year cohabitation, both over 60, husband $90,000, wife $24,000, trial judge ordered support for 6 years, Court of Appeal finds error, “rule of 65”, no time limit) and Frank v. Linn, 2014 SKCA 87 (together 16 years, wife 52 at separation; trial judge orders indefinite, no error, “rule of 65”).

  • Not applicable to short marriages. Note that the “rule of 65” for indefinite (duration not specified) support is not applicable in short marriages under 5 years in length.
  • Age at the date of separation. Remember that the calculation under the “rule of 65” requires the recipient’s age at the date of separation, not his or her age at the date of trial or application. See Domirti v. Domirti, 2010 BCCA 472 where the B.C. Court of Appeal found that the lower court, on a review application, had incorrectly applied the “rule of 65”. The lower court’s order for indefinite support was replaced by an order applying the SSAG durational range and terminating spousal support.

(f) Medium-length marriages with children: crossover cases after child support ends

One group of cases that is beginning to appear under the without child support formula is medium-length marriages with children. In these cases there would have been dependent children at the time of separation and hence spousal support would have initially been determined under the with child support formula. After child support has been terminated, these cases may be brought under the without child support formula on an application for review or variation and the time limits under the without child support formula will be applied. It is important to be aware of this particular subset of cases under the without child support formula. We have created a separate section on crossovers (see “Crossovers Between Formulas When Child Support Ends” below) to flag the specific issues raised in these cases.

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