Final version of Spousal Support Advisory Guidelines summarized

CLEBC Staff/September 24, 2008

The final version of the Spousal Support Advisory Guidelines (“SSAGs), which provide a method of determining quantum and duration of spousal support but do not have the force of legislation, has been released and the revisions summarized. The final version incorporates revisions to the 2005 draft SSAGs based on submissions and feedback from the public, lawyers, and mediators, as well as guidance from the federal Advisory Working Group on Family Law. The guidelines have been completely rewritten and reorganized. Both the final SSAGs and a report summarizing the changes are available on the Department of Justice Canada website.

The basic formulas have not changed. Nor has the SSAGs status as a set of advisory guidelines that are not legislated, do not have the force of law, and do not deal with entitlement to spousal support.

The major changes since the 2005 Spousal Support Advisory Guidelines: A Draft Proposal include:

  • clarification that social assistance is not income for spousal support purposes;
  • inclusion in the custodial or primary parent’s income of the Universal Child Care Benefit for a child who is a child of the marriage;
  • a new exception that recognizes a payor’s inability to deduct spousal support for income tax purposes if his or her income is mostly or entirely from legitimately non-taxable sources;
  • a net income cap that ensures that a recipient cannot receive more than 50 per cent of the spouses’ net disposable income or monthly cash flow under the without child support formula;
  • a clarification that “indefinite” spousal support means support with a duration that is not specified— not permanent or infinite support;
  • a range for the duration of spousal support under the basic with child support formula in which the lower end of the range (applied, for example, in shorter marriages, marriages with very young children, and some cases involving step-children) is the longer of either one-half year of support for each year of marriage or until the date after the youngest child is in school full-time;
  • minor adjustments to the formula for spousal support in shared custody cases;
  • a hybrid formula for adult children and s. 3(2)(b) of the Child Support Guidelines;
  • refinement of the debt payment exception so that it applies only when the total family debts exceed the total family assets or the payor’s debts exceed his or her assets, the qualifying debts are family debts, and the payments are excessive or unusually high;
  • extension of the prior support obligations exception to include situations where the payor spouse has a child in his or her care (in which case a notional table amount plus any s. 7 expenses paid should be deducted);
  • clarification of the illness and disability exception;
  • a new exception that recognizes the possibility in B.C. of reapportionment of property on spousal support grounds by allowing the amount of spousal support to be reduced below the ranges where a large reapportionment order has been made;
  • a recognition that it is open to counsel to argue for an exception in high-property, high-income cases;
  • a new exception to provide sufficient income to a recipient with little or no income in shorter marriage, for example in immigration sponsorship cases, to ease the transition from the marital standard of living and provide for basic needs and avoid hardship during that period;
  • an exception allowing for an increase in both the duration and amount of spousal support under the with child support formula for cases involving children with special needs; and
  • an exception allowing for an increase in the duration or amount of spousal support under the with child support formula after child support that limited the amount left over for spousal support pursuant to s. 15.3 (priority of child support) ends.

A short-form user guide to the Advisory Guidelines will be released in the coming months, and the Guidelines will continue to evolve with the law. Software suppliers will adjust their programs to account for changes in tax rates and structures or government benefits.

Coming Soon: The 2008 update of the Family Law Sourcebook for BC will keep you totally up to date on BC family law with its concise coverage of the relevant legal principals and leading cases on each point.

 


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