Spousal Support Advisory Guidelines: The Revised User's Guide

5 Application to Interim Orders (SSAG 5.3)

(a) Use of the SSAG on interim applications

The Advisory Guidelines are intended to apply to interim orders as well as final orders. The interim support setting is an ideal situation for the use of guidelines. There is a need for a quick, easily calculated amount, knowing that more precise adjustments can be made at trial. Traditionally, interim spousal support was based upon a needs-and-means analysis, assessed through budgets, current and proposed expenses, etc. All of that can be avoided with the SSAG formulas, apart from exceptional cases.

In D.R.M. v. R.B.M., 2006 BCSC 1921, Justice Martinson set out in detail the rationale for the application of the Advisory Guidelines to interim spousal support orders, concluding:

[19] They are a useful tool to have when determining interim spousal support. By focusing on income differences they provide a helpful measure of needs and means. Their use is consistent with the purposes of interim orders: to bridge the gap between the start of the litigation and the time when a resolution is reached at trial or by agreement; to avoid lengthy and costly interim litigation; to move the litigation to a timely resolution; and to reduce conflict

The usefulness of the Guidelines in the interim context when there is limited information was emphasized in Langdon v. Langdon, 2008 CarswellOnt 545, [2008] O.J. No. 418 and in Thompson v. Thompson, 2010 SKQB 322. In Drouillard v. Drouillard, 2012 ONSC 4495, in the context of a 30 year marriage, Justice Broad reviewed the general principles applicable to interim support and stated that interim support should generally follow the SSAG and that interim support should be based upon income-sharing and not budgets. Although judicial statements of the principles that govern interim awards tend to emphasize the primacy of needs and means, entitlement may also be recognized on compensatory grounds: see B.L.B. v. G.D.M., 2015 PESC 1 and H.F. v. M.H., 2014 ONCJ 450. The SSAG formulas reflect both compensatory and non-compensatory bases of entitlement, and their extensive use in the interim context shows that interim awards may also address compensatory objectives. In general both compensatory and non-compensatory claims should be considered at the interim stage, despite some court’s insistence otherwise.

There are now many reported decisions using the SSAG in the interim context.

(b) Income determination at the interim stage

There may be inadequate evidence to ascertain precise income figures at the interim stage. One solution may be to estimate different ranges for amount, based upon alternative income hypotheses. Usually there will be some overlap in the ranges, which can help in choosing a specific amount. For examples of this see Stork v. Stork, 2015 ONSC 312; Saunders v. Saunders, 2014 ONSC 2459; and Muzaffar v. Mohsin, [2009] O.J. No. 4005 (S.C.J.). (This issue is further discussed under “Income” below.)

Interim support can be adjusted retroactively later at trial if the income figures chosen were incorrect; see Frank v. Linn 2014 SKCA 87 and Stork, above.

(c) Remember the interim exception

The Advisory Guidelines provide an exception for compelling financial circumstances in the interim period (see SSAG, 12.1). As Justice Martinson recognized in D.R.M., above, this exception is based on the recognition that the amount may need to be different—either higher or lower—during the interim period while parties are sorting out their financial situation immediately after separation. In many cases the exception is still not explicitly relied upon, although the circumstances warranting an award different from the SSAG range are taken into account.

  • The SSAG amount may be too high during the interim period in cases where the payor has high debt payments or is making mortgage payments or where the recipient has remained in a mortgage-free matrimonial home and thus has significantly lower housing costs than the payor. These concerns about the SSAG amounts being too high are particularly applicable under the with child support formula where the spouses are more often at the limits of their ability to pay after separation.

    For examples see: Oster v. Oster, 2014 ONSC 7183 (shared custody, wife in home); Harrison v. Harrison, 2015 ONSC 505 (husband paying mortgage); Leclerc v. Roberts, 2014 ONSC 4201 (mortgage payment); Acevedo-Gregory v. Gregory, 2012 ONSC 6722 (interim order for exclusive possession); Haraphongse v. Haraphongse, 2011 ABCA 343 (wife in home); and Carrier v. Poon, 2013 NBQB 146 (debts)
  • The SSAG amount may be too low during the interim period, particularly in shorter marriages under the without child support formula or the custodial payor formula, where the amounts generated by the formula are relatively low. The interim exception may also cover cases involving hardship/inability to meet basic needs in the transitional period in the immediate aftermath of separation. There may thus be some overlap with the basic needs/hardship exception (SSAG, 12.7) and even the disability exception (SSAG, 12.4), but it is preferable to use the interim exception for short term, transitional needs.

    For examples see: Tasman v. Henderson, 2013 ONSC 4377 (explicit reference to interim exception and basic needs/hardship exception); Singh v. Singh, 2013 ONSC 6476 (short marriage, immigration sponsorship, explicit discussion of interim exception); Osanlo v. Onghaei, 2012 ONSC 2158 (custodial payor, need for recipient who had been primary caregiver to establish accommodation); Bhandal v. Mann, 2012 BCSC 1098 (no discussion of exceptions but interim exception and compensatory exception in short marriages would be applicable.); and S.A. v. E.A., 2010 NBQB 61 (disability exception mentioned, but interim circumstances the applicable exception).

(d) Include periods of interim support in duration

Any periods of interim support have to be included within the durational limits set by the Advisory Guidelines. For an explicit application of this see Fisher v. Fisher, 2008 ONCA 11. Further, most separated couples will go through a period, shorter or longer, of voluntary support arrangements and disentangling their household finances; these periods of informal support should also be taken into account in determining duration.

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