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Factors influencing spousal support range

Angela Princewill

July 5, 2017

Spousal Support

The research is organized by the following:

[1] General guidance for locating where on the range of spousal support should be
[2] Case law for wife not working full time where she has the ability to

Guidelines for locating range on spousal support

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 the location within the range for both amount and duration:

  • the 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 the payor
  • property division and debts
  • self-sufficiency incentives[1]

In considering the duration of a spousal support award, the court should order a duration closer to the upper end of the range so as to allow a recipient spouse to transition toward a reduced post-separation standard of living, where that spouse’s circumstances are more difficult compared to other dependent spouses who are either better educated or who secure permanent employment.[2]

Strength of any compensatory claim

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).

Recipient’s needs

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 the 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.

Age, number, needs, and standard of living of children

No details provided.

Work incentives for the payor

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, [2010] 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, [2008] O.J. No. 4507, 2008 CarswellOnt 6710 (S.C.J.) (significant overtime included in payor’s income, low end).

Property division and debts

Property division can influence location, mostly at the extremes. A large property settlement gives the spouse 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 the location in the range:

  • High access costsH.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, [2009] 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, [2009] 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, [2008] 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).

Self-sufficiency incentives

No details provided.

Case law for wife not working full time where she has the ability to

 Case summary

Shorey v. Shorey, [2009] O.J. No. 5136, 2009 CarswellOnt 7514 (S.C.J.)

Ratio:  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

Summary:

The Applicant wife and the Respondent husband started living together in 1988, married in 1989 and separated in 2005. The Applicant worked full-time as a dental hygienist for two years of the marriage. Subsequently, the Applicant maintained a part-time position as a dental hygienist at the same office, working just 3 days a week. The Respondent made $114, 581.00 with $9, 560.96 as overtime.

The Applicant said she could not work full-time because she had neck and back problems.

The Respondent suffered from bladder and prostate cancer.

The court stated that having reviewed the Applicant’s ability through own admission, the Court imputed income of $38, 000.00 to her for spousal support calculations.

How it applies to S. v. S.

Ms. S. is claiming she cannot work, however, the Court can determine her ability to work without an expert report, and impute a potential income for the purposes of spousal support calculations.

[1] Spousal Support Advisory Guidelines, www.justice.gc.ca, §3.4.1.

[2] Bourque v. Bourque (2008), 2008 CarswellNB 601 (N.B. Q.B.)

Paper by: Athena Narsingh

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