Read our Q+A with Professor Rollie Thompson, QC to learn more about the history, development, and future of the Spousal Support Advisory Guidelines (SSAG), along with what you can expect from his November 9, 2017 Advanced SSAG-ing course with co-chair Professor Carol Rogerson.
What was the impetus for the Department of Justice to create the SSAG?
After the Supreme Court of Canada released Bracklow v. Bracklow,  1 S.C.R. 420 in 1999, Professor Carol Rogerson and I separately wrote papers about the broken state of spousal support in Canada. The Department of Justice read our papers and retained us in 2001 to explore whether it was possible to create a set of spousal support advisory guidelines as a solution.
What was a challenge you experienced when creating the SSAG?
The vast majority of spousal support cases are resolved outside of the courts, so one challenge was collecting data on how parties resolved spousal support cases locally by agreement. This is where our SSAG Advisory Working Group members such as The Honourable Donna Martinson, QC and Barbara Nelson, QC were invaluable. They provided information about what happens at settlement conferences and in negotiations, which was important because spousal support patterns at settlement in terms of duration and amount sometimes differ from the patterns in reported decisions.
What were some breakthroughs you experienced when creating the SSAG?
A major breakthrough was the decision to allow the SSAG to have ranges with significant discretion. Room for discretion along with the fact that the SSAG were not going to be legislated made them easier to accept. Within that discretion, the existence of limits gave parties negotiation starting points and encouraged settlement by narrowing the negotiation range. Another breakthrough was the decision not to use a big, single spousal support formula for all scenarios. Many American jurisdictions use one formula and struggle significantly as a result. Professor Rogerson and I quickly discovered within our data that there were two different spousal support patterns, one for scenarios with children, another for those without children, which is why we produced two formulas to reflect these separate realities.
In BC, we’ve moved from the SSAG being a cross check against assessment made under existing law, all the way to non-consideration of SSAG as an appealable error. What do you think of this progression?
The BC Court of Appeal was an early adopter of the SSAG and quickly saw the policy and practical merits that SSAG could provide. The British Columbia Court of Appeal has had a number of judges with family law backgrounds and sophisticated understandings of the systemic benefits of adopting guidelines. For the BC Court of Appeal to use the SSAG as a basis for standard of review, it sends a message to the lower courts, which in turn sends a message to lawyers that straightforward cases are, and should be, resolvable within SSAG ranges. This then means appropriately reserving only more difficult and factually complex cases for resolution in the courts.
What are some unexpected impacts/results of the SSAG?
We had no idea that lawyers would be so desperate for formulaic solutions. Lawyers and judges not only love the formulas, but would even like to see formulaic solutions for some of the more difficult cases, like repartnering. The SSAG have really helped judges and lawyers to not have to reinvent the spousal support wheel for every single case. Another surprise was that Professor Rogerson and I didn’t have to make major revisions to the formulas, and that we more or less got it right the first time around. In the final version, we only had to tweak the formulas and add exceptions for some fact patterns. Now, we are at the stage where lawyers want to know if the SSAG has anything to say about more difficult issues such as retirement and disabled spouses. I think it’s a sign that people want even more guidance.
What do you think is the future of the SSAG?
Firstly, Professor Rogerson and I continue to monitor case law for any massive changes that would require revisions to the SSAG. The SSAG are intended to reflect dominant patterns for the amount and duration of spousal support. For example, we are still waiting on further guidance from the Supreme Court of Canada on the difficult question of how long a spouse should pay support when the other spouse suffers a long-term disability in a short to medium marriage situation, usually without kids. Secondly, the SSAG software programs will continue to make regular adjustments for tax and benefit changes, keeping the “numbers” up to date. Lastly, Professor Rogerson and I will need a succession plan for the SSAG as we are both nearing retirement, so we are looking for professors and lawyers to continue moving the SSAG into the future.
What can we expect from the Advanced SSAG-ing course on November 9?
You can expect a lot of spousal support fact pact patterns and working together as a group to solve them. For those who attended the 11th Biennial Family Law Conference, Advanced SSAG-ing will be much more interactive. We will go into detail about the practicalities of using the SSAG and how to deal with SSAG exceptions in daily practice. We will thoroughly discuss where within the SSAG ranges outcomes should really be located, and learn together that the midpoint (which BC courts often default to) is not always appropriate. We will also explore changing incomes over time, re-partnering, second families, self-sufficiency, retirement, and odd cases.
Register today for Advanced SSAG-ing to join your family law colleagues in grappling with advanced issues in using the Spousal Support Advisory Guidelines with guidance from Professor Rollie Thompson, QC and Professor Carol Rogerson.