A New Shade of Gray! The Spousal Support Advisory Guidelines Now Apply to Variation Applications

The Court of Appeal of Ontario in the case of Gray v Gray overruled in October of 2014 the obiter in the Fisher decision and found that the Spousal Support Advisory Guidelines (SSAG) do apply to Variation Applications in spousal support reviews including those that deal with income fluctuations and obligations that result from second families.

A variation motion was brought by the husband to eliminate child support which was ordered in 1998 as the children of the marriage were now all adults. He also sought to eliminate his obligation to pay spousal support or in the alternative, a continuation of spousal support at $800 per month as ordered in the 1998 divorce judgment. The husband was successful on the motion as the motions judge refused to apply the SSAG. The wife appealed.

The Court of Appeal allowed the appeal and, in particular, required the husband to pay spousal support at the low end of the range established by the SSAG, on the basis of “Needs” and “Compensatory”.

The Needs Basis

The wife was entitled to spousal support on a needs basis. But the motion judge’s determination of her actual need was wrong in fact and in principle.

One of the objectives of the Divorce Act is to relieve economic hardship.  “Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership.  As stated by this court in Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.”

The wife’s health prevented her from working. “This is relevant to the assessment of her needs.  As stated by the Supreme Court in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, “in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less.”

In determining the needs of the recipient, it was also incumbent on the motion judge to make a finding as to the wife’s income. The wife’s income should not include the spousal support received.

The needs of the wife can only be ascertained if measured against an accurate picture of her income.  Her budget, as found in her financial statement, was not extravagant, nor did it reflect the lifestyle the parties enjoyed prior to separation. She had reasonable expenditures relating to housing, utilities and groceries.  Her personal and health related expenses were modest. 

The Compensatory Basis

The court must analyze the economic consequences of the marriage or its breakdown, as the Supreme Court  intended in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 at paras. 41- 42 .

The purpose of compensatory support is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown. In Moge v. Moge,  at p. 861, para. 70, the Supreme Court explained the principle behind the compensatory model of support as follows:

“Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals.”

According to the motion judge’s decision, the wife was employed as a flight attendant at the time of marriage. The parties had four children between 1981 and 1990. The wife gave evidence that her employment as a flight attendant functioned well for her family because she would only get paid for the hours she worked. She enjoyed her work and felt it offered the best benefits to the family as well as time at home.  This meant that she could arrange her schedule to accommodate childcare responsibilities. Both parties acknowledge that she planned her schedule to fly on weekends, when the husband was available for child care. In addition, she took frequent unpaid leaves of absence, some related to giving birth, and others to have time off at home. 

At the time of separation, the children were 15, 13, 8 and 5 years old.  The wife had custody of the children, while the husband had access one evening a week and every other weekend. Post separation, the wife was unable to return to work for health reasons. However, it is clear that she undertook the bulk of the responsibilities relating to the children.  Her labour on the home front during these years enabled the husband to pursue his career without undue concern for the day-to-day realities of child rearing. During this time, the husband’s income increased substantially.

The wife’s career choices and her work schedule were taken to further family needs. An award of compensatory support is warranted based on the responsibilities undertaken by both parties during the marriage, and post-separation.

The Application of the SSAG

The SSAG are neither legislated, nor binding.  However they are a useful tool with which to measure the quantum and duration of spousal support. The motion judge referred to the SSAG but did not apply them when he set the amount of spousal support. 

In some cases, there are complicating factors that must be considered before a court applies the SSAG wholesale, which happens more often than not. Complicating factors that courts ought to consider include variations based on the post-separation income increase of the payor, or situations with second families. In such cases, the court must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.     

The duration of support is also an issue that ought to be contemplated under the SSAG.  For a 16 year marriage, with the incomes of these parties, the SSAG suggest support for a duration of 8 to 16 years from the date of separation, subject to variation and possibly review. An indefinite award, subject to review is appropriate where as in this case the wife continued to need support, based on her income and precarious health until a review occurs as a result of a material change in circumstance. Examples of a change of circumstance could include a change in the husband’s employment or an inheritance by the wife that would affect her needs.

April 2015