One of the issues that can arise from a divorce is spousal support, including whether a party is entitled to support, as well as the amount and duration of support. Spousal support is often provided to compensate for contributions from one party towards the marriage or to account for the fact that a party may require some financial support to become self-sufficient after being financially dependent on the other throughout the relationship. While the Spousal Support Advisory Guidelines do not determine entitlement to spousal support, they are guidelines the federal government provides to calculate spousal support. It is, therefore, important for parties in a divorce proceeding to understand how they work, as they may be entitled to spousal support. 

In this post, we will discuss the Spousal Support Advisory Guidelines so parties to a divorce can better understand their spousal support entitlements or obligations. We will examine key principles in the Guidelines and how they can be applied in a family law case. In particular, the court is expected to provide reasons for departing from the Guidelines, as in Hoffmann v De Baene, 2024 ABCA 57. This post will provide key insights for parties addressing spousal support in their divorce matter.  

What are the Spousal Support Advisory Guidelines?

The federal government developed the Spousal Support Advisory Guidelines to provide clarity, consistency, and predictability for spousal support, including its amount and duration. 

Notably, the Guidelines do not advise whether or not entitlement to spousal support applies in a particular case. Entitlement to spousal support is not applicable in every case. Generally, parties are entitled to spousal support based on compensatory, non-compensatory, or contractual grounds. The Guidelines only apply after entitlement is established on one or more grounds. 

Compensatory entitlement may arise when a party has contributed significantly to the marriage to their detriment. Common examples include moving to support their spouse’s career, even if it meant compromising their career or staying home to care for the children by giving up their career opportunities. 

Non-compensatory grounds for spousal support involve a needs basis, recognizing when a spouse faces an economic disadvantage upon the marriage breakdown after being financially dependent on the other during the relationship. 

Finally, contractual grounds involve terms in an agreement that may set out spousal support entitlement. 

Overall, the Guidelines assist the court, lawyers, and parties to a divorce case in calculating spousal support. This calculation can sometimes become complicated, and software is often used to calculate an estimate at different ranges – low, mid, and high. Determining which range applies depends on the facts of the case, as some may involve factors that warrant an amount higher or lower than the mid-range.

Income Determination Under the Spousal Support Advisory Guidelines

The court must also determine the payor’s income to determine spousal support. It is similar to determining income for child support purposes under the Federal Child Support Guidelines. Generally, the payor’s income would be based on their T1 income form issued by the Canadian Revenue Agency. If the payor’s income fluctuates, the court can consider their income of the last 3 years to determine if any non-recurring payments would not be fair to include in their overall income. On the other hand, the court can also consider any non-recurring losses of a spouse, especially if a large portion of their income comes from their business.

When a party is a shareholder, director, or officer of a corporation, and their reported income, in the court’s opinion, does not accurately reflect their actual income, the court can add back part or all of the corporation’s pre-tax income. 

The court can also impute a spouse’s income if they are found to be intentionally unemployed or underemployed, if they fail to provide adequate disclosure of their financial circumstances, if they unreasonably deduct expenses from their income, or if their property is not adequately utilized to generate income. 

With or Without Child Support Formulas 

There are also two formulas for spousal support – the with-child support formula and the without-child support formula. 

The without-child support formula can include relationships with no children or a longer marriage where the children are now adults. Under this formula, the spousal support amount and duration highly depend on the length of the relationship. A longer relationship warrants a larger amount and duration of spousal support. The length of the relationship also includes the time of the relationship before the marriage when the parties were living together. 

The other type of formula is the with-child support formula, which calculates spousal support differently, as child support takes priority over spousal support. This calculation will vary based on the parenting time schedule, such as a shared or split schedule. 

Are Spousal Support Advisory Guidelines Legally Enforceable?

The Guidelines do not have the force of law, but the court highly regards them as an effective resource to determine spousal support amount and duration. When departing from the Guidelines to determine spousal support, the judge must provide reasons for doing so. Otherwise, their decision could be appealed on those grounds, as was the case in Hoffmann

In the Hoffmann case, the wife was a doctor, and the husband was a veterinarian. They married in 2006 and separated in 2011 but continued living in the marital home until 2014. The parties had one child together and shared parenting until 2017, when the appellant had sole parenting of the child. 

At trial, the wife was ordered to pay the husband $2,500 per month in spousal support. The husband claimed he should be paid spousal support as set out under the Guidelines, which was significantly more than $2,500 per month, ranging from $1,400 to $11,000 as the wife’s income increased. 

The trial judge explained that they departed from the Guidelines amount as the husband would receive a highly valued share of the matrimonial assets that would allow him to maintain the marital standard of living that he enjoyed during the marriage. However, previous case law has found that if a party has to use up the value of their capital to maintain their marital standard of living, then they are suffering hardship as a result of the breakdown of the marriage, and they would be in a worse position later on as their capital depletes. 

The trial judge provided no other reason for departing from the Guidelines amount. The Court of Appeal allowed the appeal and ordered that spousal support be calculated according to the Guidelines.

Contact Mincher Koeman Family Lawyers For Assistance with Spousal Support Claims

Entitlement to spousal support, as well as the amount and duration, highly depends on the facts of the case. You may be entitled to spousal support and should proactively discuss it with one of our family law lawyers at Mincher Koeman, who are experienced in assisting parties with spousal support claims. Our Calgary and Canmore family law lawyers are dedicated to finding the best resolution for you after your divorce.

To book a consultation, please contact us online or by phone at 403-910-3000.

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