Ontario Court Discusses Where Spousal Support Should be Set Within the Range of the SSAG

Mark Feigenbaum

The Ontario Superior Court of Justice recently reiterated the primary factors to be considered when “choosing location within the range” established by the Spousal Support Advisory Guidelines should spousal support be set.

What Happened?

The parties at issue were never married but lived together in a conjugal relationship for over 16 years. They have three children, one of which requires ongoing financial support. The trial judge calculated that the ex-husband’s annual income was imputed on an ongoing basis at $150,000, while the ex-wife’s annual income was imputed at $40,000.

Following the trial judge’s determination that ongoing spousal support was in order, a main issue during trial involved where in the SSAG range should spousal support be fixed.

The payee parent (the ex-wife) argued that support should be at the high end of the SSAG range, while the payor parent (the ex-husband) argued that support should be at the low end.

The SSAG

The Ontario Court of Appeal previously established that a court must consider both the amount and duration of spousal support under the SSAG, and that these two factors are a “package deal” in making decisions about spousal support.

In this case, Justice Glustein took into account the six factors to consider under the SSAG, as well as length of cohabitation, when determining the appropriate range of ongoing spousal support in this matter.

The Decision

Strength of compensatory claim

A compensatory and needs based claim can result in award at the high-end of the SSAG ranges. Compensatory elements are economic decisions made throughout the relationship that were predicated upon the relationship continuing. These include, for example, taking maternity/paternity leave, forgoing career advances, etc.

In this case, Justice Glustein found that while the ex-wife had made certain economic sacrifices predicated upon the relationship persisting, she continued to work part-time throughout the couple’s relationship and was offered a full-time position (which she continued to hold at the time of trial). The judge determined that while there is a compensatory element to the ex-wife’s claim, it is not so extreme to warrant damages in the high end of the SSAG ranges, but rather a mid-range SSAG spousal support.

Needs and lifestyle during and following cohabitation

Justice Glustein reiterated that the ex-wife should obtain a level of support that would enable her to maintain a standard of living as to which she was accustomed at the time the cohabitation ended.

Justice Glustein noted that the parties had maintained a modest lifestyle during their relationship that warranted a mid-range SSAG spousal support.

The ex-wife had argued that her “need” should incorporate the legal fees she owes to her counsel. The ex-husband responded that the issue of costs had not yet been determined by the court and should be addressed separately during costs submissions.

Justice Glustein agreed with the ex-husband and determined that since it is not possible to determine how much the ex-wife owes to her counsel, the court will not consider this unknown amount in the ex-wife’s assessment of need.

Needs and ability to pay of the payor parent

Justice Glustein determined that the ex-husband had sufficient imputed income to pay support. He also noted that if the ex-husband chose not to pursue employment, he would be unable to submit that he should pay a low range of spousal support.

The ex-wife argued that the funds the ex-husband received from an inheritance from his father or his investment income should be included in the calculation of his means.

Justice Glustein disagreed and concluded that any potential value from the ex-husband’s investment income or funds used for charitable purposes should be excluded from the analysis of the “means” of a payor parent to be redistributed for spousal support when there has already been a finding those that those funds should be excluded.

Justice Glustein also noted that the ex-husband had reasonable means to pay spousal support and that this supports a mid-range SSAG spousal support.

Work incentives for the payor parent

Justice Glustein did not consider this factor affecting the SSAG’s range determination as he found that the burden lay with the payor parent to deal with his underemployment.

Property division and debts

Under this factor, Justice Glustein considered paragraph 33(8) of the Family Law Act, which leads the court to consider whether any financial hardship has been relieved by division of property.

Justice Glustein referenced Cloutier v Francis, which considered a spouse’s unjust enrichment claim in a common-law relationship.

Within Justice Glustein’s Reasons, he ordered the ex-husband to pay the ex-wife a joint family venture award. Justice Glustein rejected the ex-wife’s argument that the court should not consider this joint family venture award since the ex-husband is appealing the decision.

Justice Glustein concluded that he will take the joint family venture award into account and will make no finding as to whether the ex-wife can seek to vary spousal support, should the ex-husband be successful on appeal.

Self-sufficiency incentives

Justice Glustein concluded that there was no evidence to demonstrate that the ex-wife would be able to improve her income beyond the opportunity to work full-time as a bank teller. Consequently, Justice Glustein did not consider this to be a factor affecting the SSAG range determination.

Length of cohabitation

Justice Glustein concluded that the fact of being parents does not necessarily demonstrate a relationship of some permanence, pursuant to Section 29(b) of the FLA. Justice Glustein disagreed with the ex-wife’s argument that there had been a relationship of some permanence when the parties first started dating or when their first child was born. Rather, Justice Glustein determined that the parties were “spouses” under s. 29(b) as of 1994, when the parties began a relationship as parents.

Justice Glustein determined that the ex-wife’s situation in this case was not as severe as in other cases to warrant a higher end of the SSAG range, given that she did not have to relocate to continue her career. In addition, the ex-husband was an active parent that was responsible for many household tasks, at least from 2005 onwards.

Justice Glustein also concluded that while length of the former couple’s cohabitation is a factor, it does not support a high SSAG range of support but rather a mid-range SSAG assessment, in light of other considerations.

In light of the above factors, Justice Glustein ruled that ongoing spousal support should be set at a “lower” side of the mid-range number, but above the “low” range.

Justice Glustein concluded:

“Given that the low range is at $1,799 per month while the mid-range is at $2,291 per month, I fix spousal support on an ongoing basis at $2,100 per month.”

Whether you are married or in a common law relationship, spousal support issues following the breakdown of a relationship can become complicated and contentious. If you are considering a separation, or have already begun the process, and have questions about how to protect yourself, you should consult with a knowledgeable family lawyer before taking any initial or further steps. Mark Feigenbaum is a highly skilled Toronto family lawyer. He brings together many years of litigation, corporate law, estate law, tax law, and accounting experience and applies this multi-faceted experience to family law disputes. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.