Spousal Support Guidelines

When a marriage or common-law relationship ends, one of the most significant financial considerations is spousal support. Understanding how spousal support is determined in Ontario is crucial for both the recipient and the payor. The Spousal Support Advisory Guidelines (SSAG) provide a framework for calculating fair and consistent support amounts, though they are not legally binding like child support guidelines.

The Role of the Spousal Support Advisory Guidelines (SSAG)

Development and Purpose

The Spousal Support Advisory Guidelines were developed in response to the unpredictable and often inconsistent spousal support outcomes across Canada. First released in 2008 after extensive research and consultation, these guidelines aimed to create more certainty and predictability in spousal support determinations while still maintaining flexibility for individual circumstances.

Unlike child support guidelines, the SSAG are not legislated rules. Instead, they serve as a practical tool that lawyers, mediators, and judges use to determine appropriate spousal support amounts. These guidelines help establish a range of support outcomes based on formulas that consider income, the length of the relationship, and whether there are dependent children.

The purpose of the SSAG is not to determine entitlement to spousal support—that question must still be resolved based on the legal principles established in the Divorce Act and relevant case law. Rather, once entitlement is established, the guidelines assist in determining the appropriate amount and duration of support.

Calculating Support

The SSAG use two basic formulas to calculate spousal support:

Without Child Support Formula: Applied when there are no dependent children, this formula considers the gross income difference between spouses and the length of the marriage or cohabitation.

With Child Support Formula: Used when there are dependent children and child support obligations, this formula accounts for the net income of each spouse after considering child support payments.

Both formulas generate three figures: a low, mid, and high range for monthly support payments. This range gives negotiating parties flexibility while providing a reasonable framework. The calculation process can be complex and is best conducted by professionals with access to specialized software, as discussed in our guide on how spousal support is estimated.

The formulas consider several factors, including:

The income of both spouses
The length of the marriage or cohabitation
The ages of both parties
Child support obligations
Tax implications of support payments

Advisory Guidelines vs. Legal Requirements

It’s important to understand that the SSAG are advisory only. Unlike the Federal Child Support Guidelines, which are mandatory, courts are not legally bound to apply the SSAG. Judges maintain discretion to deviate from the guidelines when circumstances warrant.

However, since their introduction, the SSAG have gained significant acceptance in Canadian courts. The Supreme Court of Canada has recognized their utility, and many judges use them as a starting point in spousal support determinations. While not legally binding, departing from these guidelines typically requires justification.

In practice, this means that while the SSAG provide a useful reference point, other factors must be considered, including:

The conditions, means, needs, and other circumstances of each spouse
The length of time the spouses cohabited
The functions performed by each spouse during cohabitation
Any orders, agreements, or arrangements relating to support

There are also circumstances where the guidelines explicitly acknowledge that exceptions may be appropriate, such as cases involving illness or disability, debt payment, or other special circumstances.

Factors Influencing Spousal Support

Determining Entitlement

Before the SSAG can be applied, entitlement to spousal support must be established. Not every spouse is automatically entitled to support after separation. Entitlement is based on one or more of three grounds recognized in Canadian law:

Compensatory Basis: Support may be appropriate to compensate a spouse for economic disadvantages suffered due to the relationship, such as career sacrifices for family responsibilities.
Non-Compensatory Basis: Support may be needed to address the economic hardship arising from the breakdown of the relationship, reflecting the economic interdependence developed during the marriage.
Contractual Basis: Support may be required by a pre-existing agreement between the parties, such as a marriage contract or separation agreement.

In some situations, spousal support will be denied entirely if the court determines there is no valid basis for entitlement. Factors that might lead to denial include short marriages without children, situations where both spouses maintained financial independence, or cases where the requesting spouse has engaged in serious misconduct.

Income Considerations

The accurate determination of income is fundamental to calculating spousal support. While the starting point is typically the income reported for tax purposes, various adjustments may be necessary:

Self-employment income: Business expenses that provide personal benefits may be added back to income
Corporate income: Retained earnings or dividends may be attributed to a spouse who controls a corporation
Income fluctuations: For individuals with variable income, averaging over several years may be appropriate
Investment income: Returns on investments may be included in income calculations
Imputed income: In cases where a spouse is intentionally unemployed or underemployed, income may be imputed

The SSAG suggest using income determination methods similar to those in the Federal Child Support Guidelines, providing consistency between different support obligations.

For high-income cases (typically above $350,000 combined gross income), the guidelines acknowledge that a ceiling may be appropriate, beyond which the formula results might need adjustment.

Duration of Support

The SSAG provide guidance not only on the amount of support but also its duration. Generally, the length of support is related to the length of the marriage or cohabitation:

For shorter marriages (under 5 years) without children, support might be transitional, lasting for a period equal to half the length of the relationship.
For mid-length marriages (5-20 years), the duration might range from half to one times the length of the relationship.
For long marriages (over 20 years) or where the marriage has lasted more than 5 years and the years of marriage and the recipient’s age total 65 or more (the “Rule of 65”), indefinite support might be appropriate.

The guidelines also recognize that “indefinite” doesn’t necessarily mean “permanent.” Support orders can be reviewed and modified if circumstances change significantly.

Duration becomes more complex when there are dependent children. In these cases, support may continue at least until the youngest child completes high school, regardless of the length of the marriage.

Impact of Children on Spousal Support

Child Support vs. Spousal Support

When children are involved, child support takes priority over spousal support. This is a fundamental principle in Canadian family law—the needs of children must be addressed before the needs of the spouses.

This prioritization affects spousal support in several ways:

The with-child-support formula calculates spousal support based on income after child support obligations are met
The available income for spousal support is reduced by child support payments
Extraordinary expenses for children under Section 7 of the Child Support Guidelines further reduce available income

It’s important to note that child support and spousal support serve different purposes. Child support is the right of the child and cannot be waived by parents, while spousal support addresses the economic interdependence of the spouses and can, in some circumstances, be waived or limited by agreement.

Adjusting for Parental Responsibilities

The SSAG recognize that ongoing parental responsibilities after separation may affect a spouse’s earning capacity and economic self-sufficiency. The with-child-support formula accounts for this reality in several ways:

It acknowledges the custodial parent’s reduced ability to work full-time due to childcare responsibilities
It considers the economic impact of shared parenting arrangements

For parents with primary care of young children, the guidelines often result in higher spousal support amounts and longer durations than would apply in childless marriages of similar length.

As children age and require less direct supervision, a recipient spouse may be expected to increase their income-earning efforts. This can be a basis for varying support if circumstances change substantially. Conversely, when child support falls away, the quantum of spousal support may increase.

Adjustments and Changes in Circumstances

Reviewing and Varying Support Orders

Spousal support orders are rarely permanent. They can be varied if there is a material change in circumstances that would result in a different order had it been known at the time of the original order. Examples include:

Significant increases or decreases in either spouse’s income
The recipient spouse entering into a new relationship
Retirement of either spouse
Health changes affecting earning capacity
Changes in childcare responsibilities

The process for varying support typically involves:

Demonstrating a material change in circumstances
Establishing that the change was not contemplated at the time of the original order
Applying the SSAG to the new circumstances to determine an appropriate adjustment

Some separation agreements or court orders include review clauses that specify when and under what conditions support will be reconsidered. These can provide more certainty than relying on the material change test.

Termination of Spousal Support Obligations

Unless an order agreement has an end date, there is no automatic termination date for spousal support. However, several circumstances may lead to the end of support obligations:

The recipient spouse becoming self-sufficient
The recipient spouse remarrying or entering a new common-law relationship
The death of either spouse (unless life insurance or estate provisions specify otherwise)
The expiration of a time-limited support order
Agreement between the parties to end support

It’s worth noting that remarriage or repartnering does not automatically terminate spousal support. Courts will consider whether the new relationship actually changes the recipient’s need for support or the payor’s ability to pay.

The SSAG suggest that in shorter marriages without children, support may have a defined end date from the outset. For longer marriages, support may be indefinite initially but subject to review if circumstances change.

Frequently Asked Questions

Are the Spousal Support Advisory Guidelines legally binding?

No, unlike the Federal Child Support Guidelines, the SSAG are not legislated rules and are not legally binding. They are a practical tool that provides guidance to judges, lawyers, and separating couples. However, they have gained significant acceptance in Canadian courts, and departures from them typically require justification.

How is income determined for spousal support calculations?

Income for spousal support is generally determined using methods similar to those in the Federal Child Support Guidelines. The starting point is line 150 income from tax returns, but adjustments may be necessary for self-employment income, corporate income, investment returns, and other sources. In some cases, income may be imputed if a spouse is intentionally unemployed or underemployed.

Can spousal support be changed if circumstances change?

Yes, spousal support can be varied if there is a material change in circumstances that would have resulted in a different order had it been known at the time of the original order. Examples include significant income changes, retirement, health issues affecting earning capacity, or the recipient entering a new relationship. As always, the court would prefer parties to agree to changes, but if that’s not possible, the process typically involves applying to the court for a variation order.

Does remarriage automatically end spousal support?

Yes, if the order or agreement says so.

Otherwise, no, remarriage or entering a new common-law relationship does not automatically terminate spousal support obligations. While it may be a factor in considering variation or termination, courts will assess whether the new relationship actually changes the recipient’s need for support or the payor’s ability to pay.

Understanding Spousal Support Guidelines

The Spousal Support Advisory Guidelines provide a valuable framework for determining support amounts and duration in a more consistent and predictable manner. While not legally binding, they offer important guidance to courts, lawyers, and separating spouses navigating the often complex terrain of spousal support.

Understanding these guidelines can help separating couples set realistic expectations and reach fair agreements. However, the application of the SSAG to individual circumstances often requires professional guidance. If you are facing separation or divorce and have questions about spousal support, contact our family law team for a consultation.

Every family situation is unique, and while the guidelines provide a useful starting point, tailored legal advice is essential to ensure your rights and obligations regarding spousal support are properly addressed.