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:

(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:

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

(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:

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.

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.

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

(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”).

(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.