SPOUSAL SUPPORT REMAINS DIFFICULT
TO PREDICT

By DOUGLAS J. MANNING, Family Law Department

One of the thorniest issues with which to provide legal advice and recommendations to separating spouses is on the issue of spousal support.  There is both federal and provincial legislation dealing with the entitlement to support and the factors to be considered in awarding an amount of support.

Provincial legislation typically governs when spouses who are not married to each other separate while federal legislation deals with married spouses who separate.
For ease of reference , I will assume that the factors under the provincial and federal legislation are essentially the same for the purposes of this article.

As many readers are aware, the determination of entitlement for, and quantum of, child-support, are now governed by the Child Support Guidelines which came into place in 1997.  These guidelines assist parents in determining an appropriate level of child-support based on the income of the child-support payor and the number of children for whom a child-support requirement exists.  These Guidelines are in the form of mandated legislation and as such must apply, unless the parties mutually agree otherwise.

In January 2005 the federal Department of Justice released the "Spousal Support Advisory Guidelines".  These guidelines do not have the same influence as the legislated Child Support Guidelines.  The Spousal Support Advisory Guidelines serve as a check on a range of support options that may be discussed between the parties or that  are being considered by a court in awarding an amount of spousal support.  These advisory guidelines are not determinative of the matter as they do not have the force of law.

However, these advisory guidelines have been considered in numerous court decisions since their release and in general have proved to be a handy tool to assist lawyers and their clients in determining an appropriate range of spousal support.

The first requirement in any analysis of spousal support is to ask the question -- whether the spousal support applicant is entitled to receive support?  For example, if the parties were married for a very short duration and their employment incomes are approximately the same, then presumably neither party will be entitled to periodic support from the other.  The Spousal Support Advisory Guidelines do not deal with the issue of entitlement but rather only the issues of the quantum of support and the duration of the support.

The first case dealing with the Spousal Support Advisory Guidelines to reach the Ontario Court of Appeal was decided in January 2008.  The name of the case is Fisher v. Fisher, 2008 CarswellOnt 43 (Ont. C.A.).  The Ontario Court of Appeal considered the Guidelines a "useful tool" to check on the amount of support that the trial court had determined to be appropriate in the circumstances.  The Court of Appeal stated that the Guidelines "will help in the long run to bring consistency and predictability to spousal support awards, encourage settlement, and allow parties to anticipate their support responsibilities at the time of separation."  However, the Court of Appeal emphasized that the Guidelines do not replace an individualized analysis, but rather supplement the analysis, and the Guidelines must be applied in their entirety with attention to such issues as entitlement and whether the Guidelines apply to incomes above a certain level.

The Fisher case involved a 19 year marriage without children.  The husband was a teacher during the early years of marriage and then a few years before separation he obtained  new employment with a teachers federation and his income started to increase.  The increase in income continued after separation.  The husband's income in 2003 was $81,800; in 2004 (the year of separation) it was $125,000 and by the date of trial in 2006 it was $140,000.  The husband had established a new relationship after separation with a woman with two young children who received child-support from the children's father.

The wife worked during the marriage and had taken a number of university courses.  Her average annual income during the marriage was approximately $30,000 and for the two years before separation she had been earning $41,000.  After separation the wife became severely depressed and was unable to work.  In 2004 the wife was awarded temporary spousal support of $2,000 a month.  By the time of trial she was earning $30,000.

In reviewing the trial evidence, the Court of Appeal substituted its opinion for that of the trial judge and ordered an increase in spousal support to $3,000 per month with the amount eventually decreasing after four years and then terminating after seven years from the date of separation.

This case is noteworthy because of its endorsement of the Spousal Support Advisory Guidelines and for other commentary found within the decision.  This commentary included the following:

1. A continuation of the growing trend for time-limited orders in cases where there are no children.
2. In many cases where there are no children and both parties are employed, support will either terminate at a later point in time or continue until there is a material change in either parties’ financial circumstances justifying an adjustment in the amount of support.
3. In determining the amount of support the court  the husband’s income was averaged over the three years prior to separation rather than taking into consideration his post separation increase in his income.
4. Even though the Court of Appeal made its determination 3 1/2 years after separation, it awarded an increased amount of spousal support commencing from the time of separation.  This created an amount of arrears that the husband would have to satisfy in the coming months.

Spousal support advice to clients separating after a relationship of several years (or more) duration continues to provide challenges to both lawyers and their clients.  However, resources such as the Spousal Support Advisory Guidelines provide guidance and hope for the resolution of spousal support issues with less conflict.  As the Guidelines continue to be examined and refined by the courts and academics one remains hopeful that increased certainty and predictability will result and the possibility that these Guidelines will become legislated rather than simply advisory.

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The above is not intended to constitute legal advice. Please contact a lawyer to clarify your legal rights.