The document discusses the legislative framework around divorce in Canada, including the Divorce Act as federal legislation last revised in 1985. It also notes there is overlapping provincial legislation. The Divorce Act outlines factors for determining spousal and child support, including the economic position of both spouses and children. The document also discusses the Spousal Support Advisory Guidelines, which provide formulas to determine support amounts and durations based on income sharing and other principles but are not binding law. The guidelines aim to improve consistency and predictability in support decisions.

1. The Legislative Framework
 Divorce Act
 Federal Legislation
 Last Revised 1985
 Also Provincial Legislation
 Much overlap between federal and
provincial/territorial support laws
Ken Maynard (877) 932-8389

2. The Legislative Framework – Divorce Act
 recognize any economic advantages or disadvantages
to the spouses arising from the marriage or its
breakdown;
Divorce the SmartWay (877) 932-8389

3. The Legislative Framework – Divorce Act
 apportion between the spouses any financial
consequences arising from the care of any child of
the marriage over and above the obligation
apportioned between the spouses pursuant to
subsection (8) [i.e. through child support];
Divorce the SmartWay (877) 932-8389

4. The Legislative Framework – Divorce Act
 relieve any economic hardship of the spouses arising
from the break-down of the marriage; and
Divorce the SmartWay (877) 932-8389

5. The Legislative Framework – Divorce Act
 in so far as practicable, promote the economic self-
sufficiency of each spouse within a reasonable period
of time.
Divorce the SmartWay (877) 932-8389

6. The Legislative Framework – Divorce Act
 In making an order … the court shall take into
consideration the condition, means, needs and other
circumstances of each spouse including
Divorce the SmartWay (877) 932-8389

7. The Legislative Framework – Divorce Act
(a) the length of time the spouses cohabited;
(b) the functions performed by the spouse during
cohabitation; and
(c) any order, agreement or arrangement relating to
support of the spouse or child.
Divorce the SmartWay (877) 932-8389

8. The Legislative Framework – Divorce Act
 In making an order [for spousal support or an
interim order] the court shall not take into
consideration any misconduct of a spouse in relation
to the marriage.
Divorce the SmartWay (877) 932-8389

9. Spousal Support Advisory Guidelines (SSAG)
 What are Spousal Support Advisory Guidelines (SSAG) ?
An academic paper
Released by the Federal Department of Justic
Draft 2005, Final 2008
A variety of mathematic formulas
To determine spousal support amounts
How long spousal support should be paid
The Advisory Guidelines are not law.
Divorce the SmartWay (877) 932-8389

10. Spousal Support Advisory Guidelines (SSAG)
 Why have Spousal Support Advisory Guidelines ?
 Generally, the uncertainty and unpredictability that
pervaded the law of spousal support was undermining the
legitimacy of the spousal support obligation.
 The widely differing understandings of the nature of the
spousal support obligation generated concerns about unfair
outcomes at both ends of the spectrum.
 In some cases awards were perceived as too low, in others
as unjustifiably high
Divorce the SmartWay (877) 932-8389

11. Core Concepts of SSAGs
 Income Sharing
 Personal Budgets play a diminished role
 Primarily based on incomes of both parties
 Mathematical formula to determine the portion of
spousal incomes to be shared.
 Does not mean equal sharing.
Divorce the SmartWay (877) 932-8389

12. SSAGs the Formulas
 Two basic formulas
 1) Without child support formula
 2) With child support formula
 Both formulas use income sharing
 Determining income is the Starting Point.
Divorce the SmartWay (877) 932-8389

13. SSAGs - Without child support formula
 Relies heavily upon length of marriage
 Including pre-marital cohabitation
 Amount and duration increase with the length of the
relationship
 Concept of merger over time
 Both compensatory & non-compensatory
Divorce the SmartWay (877) 932-8389

14. Compensatory Support
 Redress the economic loss from:
 Missed out on career opportunities,
 Pasted up opportunity to earn an income,
 Missed promotions, benefits, stock options, medical/dental coverage
 Helped the spouse promote their career or business.
 Loss from stay home parent or care giver
 Sometimes a lump sum payment
Divorce the SmartWay (877) 932-8389

15. Non - Compensatory Support
 Based on need.
 Economic hardship
 Significant decline in standard of living
 Reflects the economic interdependency that develops
as a result of a shared life,
 Elements of reliance and expectation
Divorce the SmartWay (877) 932-8389

16. SSAGs – With child support formula
Concept of Parental Partnership Principle
Child support, priority over Spousal Support
Differential tax treatment of child and spousal
support must be taken into account
Divorce the SmartWay (877) 932-8389

17. After the SSAG Formulas Have Been Applied
 Still much room for flexibility to respond to the facts
of particular cases
 Amounts and durations within the ranges generated
by the formulas
 Ability to Restructure amount vs duration
Divorce the SmartWay (877) 932-8389

18. After the SSAG Formulas Have Been Applied
 Using the SSAG Ranges
 Precise amount or duration within the SSAG ranges
will be driven by the factors on the handouts.
Divorce the SmartWay (877) 932-8389

19. After the SSAG Formulas Have Been Applied
 Restructuring
Restructuring can be used in three ways:
1) to front-end load support by increasing
the amount beyond the formulas’ ranges and
shortening duration;
2) to extend duration beyond the formulas’
ranges by lowering the monthly amount; and
3) to formulate a lump sum payment by
combining amount and duration
Divorce the SmartWay (877) 932-8389

20. Applying Spousal Support Advisory Guidelines
 Income - The Starting Point
 Two incomes are in issue, Payor & Recipient
 Accurate determination of spousal incomes is
critical to the proper application of the SSAGs
 Income may need to be imputed to a payor spouse,
but in addition a spousal support case may also
require that an income be imputed to the recipient
spouse, because of self-sufficiency issues.
Divorce the SmartWay (877) 932-8389

21. Applying Spousal Support Advisory Guidelines
Income continued….
Adjustments to Income for:









Untaxed or Non-Taxable income
The Child Tax Benefit
Canadian Child Tax Benefit
National Child Benefit Supplement
The GST-HST credit
Child Disability Benefit
Universal Child Care Benefit
Various provincial benefit and credit schemes
Refundable medical expense credit
Divorce the SmartWay (877) 932-8389

22. Applying Spousal Support Advisory Guidelines
 Income…is income from all sources
 Pattern of Income:
 the court may have regard to the spouse’s income over the last three
years and determine an amount that is fair and reasonable in light of
any pattern of income.
Divorce the SmartWay (877) 932-8389

23. Self - Sufficiency
 Even in long traditional marriages, self-sufficiency
remains a consideration
 Real encouragement for self-sufficiency is not found in:





Spousal support law
Advisory Guidelines
But in the harsh economic reality facing most separated or divorced
spouses.
Recipient must find more income in order to avoid a drop in her or
his standard of living
Spousal support is limited by the payor’s ability to pay
Divorce the SmartWay (877) 932-8389

24. Self – Sufficiency & Imputing Income
 Imputing Income what is it ?
 Imputing income simply means that the court treats the payor or
recipient's spouse’s income as if it is more than what the spouse is
actually earning.
 Why Impute Income:
 A spouse is unemployed, underemployed or earning less than what
he or she was previously earning to affect an increase or decrease in
support payments
 Recipient spouse who has failed to maximize earning capacity.
 Courts believe, imputing income provides a ready means of assessing
and encouraging self-sufficiency.
Divorce the SmartWay (877) 932-8389

25. Steps Taken to arrive at Support Amount
1) Establish Income & Means
2) Run SSAG Report in DivorceMate to establish
range of spousal support
3) Review SSAG Considerations in to establish where
within the range support should be.
4) Develop Lifestyle Analysis to address effects on
Lifestyle.
5) Run CDFA projections if required
6) Mediate final amount
Divorce the SmartWay (877) 932-8389

26. Mediation Services
Visit us @ww.divorcethesmartway.ca
Divorce the SmartWay (877) 932-8389