Spousal Support Advisory Guidelines: The Revised User's Guide
9 Choosing Location Within the Range (SSAG Chapter 9)
Determining the ranges for amount and duration under the SSAG formulas is only the beginning of the real analysis by lawyers, mediators and judges. The ranges are quite broad, under both formulas, especially where the disparity in incomes is large or the marriage is long. Too often, the lawyer for the recipient asks for the high end of the range, the lawyer for the payor offers the low end, and then the court opts for the mid-range, all with little in the way of analysis or explanation.
There has been a distinct tendency in the case law to “default” to the mid-range for amount, an approach which should be avoided, in our view. On duration, we see much less of a tendency to default to the middle of the range, and more explanation for the outcome.
The mid-point of the SSAG ranges for amount should NOT be treated as the default outcome. It is not the “norm”, with the upper and lower ends of the range reserved for exceptional cases. Too often judges treat the mid-point as such, especially under the with child support formula. Our review of SSAG cases has revealed that in 60 per cent of all the reported with child support cases spousal support is ordered at the mid-point. A mid-point outcome is typically treated as if it does not require any explanation, with outcomes above or below being more likely to result in reasons. For a few decisions that carefully explain a mid-range outcome, see Reid v. Carnduff, 2014 ONSC 605 and Monahan-Joudrey v. Joudrey, 2012 ONSC 5984;
If anything, the with child support cases should more often resolve in the upper half of the range, as the formula already adjusts for “average” ability to pay. Most of these cases are strongly compensatory and there is great “need” in the home of the primary carer for the children, which should push amounts higher in the range. In shared custody cases, by contrast, the default outcome in bi-nuclear cases (no new partners, no new children) should be the spousal support which generates a 50/50 split of net disposable income (NDI), explained in more detail above under “The With Child Support Formula”.
We see less of a pattern of “default to the mid” under the without child support formula. This formula is simpler, less driven by ability to pay, with more diverse fact situations. And budgets may be more important in these cases.
Chapter 9 of the SSAG provides considerable guidance on location within the range, setting out a non-exclusive list of factors to assist in determining location within the range for both amount and duration:
- strength of any compensatory claim
- recipient’s needs
- age, number, needs and standard of living of children (if any)
- needs and ability to pay of payor
- work incentives for payor
- property division and debts
- self-sufficiency incentives
Lawyers need to think about fashioning arguments based on these factors, and others, to support their position on amount or duration. Courts need to explain why they located an amount within the range, generating a body of case law that will provide guidance in negotiations. Some judges are very clear why they chose a particular location, offering a model for others.
There are some good examples in the cases of careful explanation for location within the range. One of the best appeal court examples is still Cassidy v. McNeil, 2010 ONCA 218 (low end appropriate where payor husband continues as custodial parent, wife’s income relatively high, no time limit). Cassidy recognized the inter-relationship of duration and amount. A high-range amount can be linked to a shorter duration or, vice versa, a lower amount for a longer duration. See also Willi v. Chapple,  O.J. No. 3752 (S.C.J.) (shorter duration, low income estimate for payor, upper end of range for amount).
Location often reflects the income determinations that were used to establish the range for amount. A low estimate of the payor’s income may result in a court going to the high end of the range, as in Saunders v. Saunders, 2015 ONSC 2459 (interim, high-income) and Willi v. Chapple, above. Conversely, where it is difficult to impute income to a recipient, but a court believes she or he could earn more, the judge may go lower in the range: Shorey v. Shorey,  O.J. No. 5136, 2009 CarswellOnt 7514 (S.C.J.) (wife working 3 days/week, could make more, some overtime attributed to husband, he less able to increase income, mid-range).
The strength of the compensatory claim is often mentioned as a factor, whether strong or weak: Brown v. Brown, 2013 NBQB 369 (non-compensatory claim only, low end of range); Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 (strong compensatory claim, sole caregiver); Ross v. Ross, 2010 BCSC 52 (wife maintained qualifications during marriage, able to find full-time work, weaker compensatory claim); and Barry v. Barry, 2009 NLUFC 13 (weaker compensatory claim, stronger non-compensatory claim, below mid-range).
The depth of need can be a strong non-compensatory factor pushing amount higher in the range: Bastarache v. Bastarache, 2012 NBQB 75 (disparity in living standards, need of wife, between mid and high range). Lower housing costs for the recipient can reduce “need” and pull a court lower in the range, where the recipient is living in a mortgage-free home or pays reduced rent: Guignard v. Guignard, 2011 ONSC 7078 (wife living in rent-geared-to-income housing).
The recipient may also require training or education to improve their earning capacity, a factor which will push the amount higher in the range for a period of time, e.g. Jones v. Hugo, 2012 ONCJ 211.
The payor’s ability to pay can be affected by debt payments: Guignard v. Guignard, above; S.D. v. J.D., 2012 NBQB 237. The payor’s cash flow may be seriously affected by mandatory pension contributions, which should be taken into account in most instances by location in the range: Hari v. Hari, 2013 ONSC 5562; and Macey v. Macey, 2013 ONSC 462.
Work incentives for the payor are frequently mentioned in the cases: Reid v. Carnduff, 2014 ONSC 605 (mid-range, transportation costs for commute to work); Chapman v. Chapman,  O.J. No. (S.C.J.) (husband’s income dependent on how hard he works, low end of range for work incentives); Savoie v. Savoie, 2009 NBQB 134 (lower than mid-range); and Lalonde v. Lalonde,  O.J. No. 4507, 2008 CarswellOnt 6710 (S.C.J.) (significant overtime included in payor’s income, low end).
Property division can influence location, mostly at the extremes. A large property settlement gives the spouses security and capital to fall back upon, likely leading to an amount lower in the range: Cochrane v. Cochrane, 2013 BCSC 2114 (strong compensatory claim, but large property, low end). Or, conversely, if there is little property to be divided, support can be higher in the range.
Some specific factors have emerged, that are not explicitly listed amongst those in Chapter 9 of the SSAG, but that can be important in determining location in the range:
- High access costs: H.F. v. M.H., 2014 ONCJ 450 (husband returned to Bermuda); Jardine v. Jardine, 2013 NSSC 30 (high transportation costs for access, split custody); S.D. v. J.D., 2012 NBQB 237 (custodial payor, husband pays all costs of supervised access by wife); Gibson v. Gibson,  O.J. No. 4172 (high access costs after wife’s move from Thunder Bay to Elliot Lake, husband making payments on line of credit, lower end of range); Graham v. Wilson,  O.J. No. 1432, 2009 CarswellOnt 1866 (S.C.J.)(travel for extensive weekend access, low end); Novlesky v. Novlesky, 2009 BCSC 1328 (wife moves back to Brazil, high travel costs, low end); Spikula v. Spikula,  O.J. No. 3931 (S.C.J.)(costs of shared custody, low end).
- High medical costs: S.J.M. v. J.L.M., 2010 BCSC 154 (wife’s extra medical, drug and dental costs after divorce, upper end of range).
There are other factors that can affect location in the range. Where the recipient remarries or repartners, the amount may be moved lower in the range than would otherwise be the case, or even below the range, as is explained in “The Recipient’s Remarriage or Repartnering” below. Where the payor has a second family, or subsequent children, again there may be an adjustment in some cases by way of location in the range for amount: see “Second Families, or Subsequent Children” below.
Along with the exceptions, this is an area of the SSAG analysis that is too often ignored or downplayed. It is odd to ignore location in the range for amount, given how much energy and analysis is devoted to the determination of spousal incomes. Given the breadth of the ranges for amount, it is just as easy to get to a desired amount through a careful analysis of these location factors, as it is through arguments about incomes. And, similarly, all the attention tends to get concentrated on the amount of support, when location in the range for duration may be every bit as important. There are many moving parts to a good SSAG analysis, and it is an error to focus on just one part.
The formula ranges for both amount and duration are quite broad, providing lots of room for the exercise of judgment and discretion to respond to the facts of individual cases. If you wish to go higher or lower than the formula ranges, remember to first consider “Restructuring”, discussed below. If neither location in the range nor restructuring seem to produce the desired outcome, then take a look at “Exceptions” below.
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