The Divorce Act sets out the factors that a judge considers when ordering one ex-partner to pay spousal support (also knows as “partner support” or “spousal maintenance”) to the other ex-partner. The factors in provincial family law legislation that applies to unmarried couples, such as Alberta’s Family Law Act, often mirror the Divorce Act.
Before spousal support is ordered, one ex-partner must show that they are entitled to spousal support. Entitlement is a big topic that we might cover in another issue. You can find basic information on entitlement in CPLEA’s Financial Support booklet.
If one ex-partner is entitled to spousal support, the next question is how much should they receive (the “quantum”) and for how long (the “duration”). Lawyers, judges and ex-partners often use the Spousal Support Advisory Guidelines (the “SSAGs”) to help determine the quantum and duration of spousal support.
Two law professors, Carol Rogerson and Rollie Thompson, developed the SSAGs based on how courts were practically applying the Divorce Act factors. The Federal Department of Justice published the SSAGs. The SSAGs include a set of calculations used to determine quantum and duration of spousal support as well as a User Guide to provide practical assistance in using the calculations. The SSAGs provide consistency and predictability to spousal support awards. They focus on income sharing rather than analyzing each partner’s budgets. The Federal Department of Justice released a draft proposal in 2005 before releasing a “final” version in 2008. The User Guide was updated in 2010 and 2016.
There is good reason to believe that the Court’s comments in Wild will lead to greater confidence in the use of the SSAGs in Alberta.Unlike the Federal Child Support Guidelines, the SSAGs are truly guidelines. They are not law. They are not part of any piece of legislation or regulation. So what are they? Does a judge need to follow them?
When making a decision, a judge must follow the applicable legislation and regulations. Judges must also consider the decisions that other judges have made, particularly the decisions of judges at higher levels of court. This is what we call “precedent” or “caselaw”. Judges are also welcome to consider other helpful resources, such as textbooks written by respected legal academics. However, these other resources should not override the judge’s discretion and application of the legislation and caselaw.
From early on, appeal courts across Canada referred to the SSAGs as a “useful tool”, just like a well-researched textbook. However, there was inconsistency on what weight courts would give to the SSAGs. Appeal courts across Canada had to decide if it was an error for a judge to put too much, or too little, weight on SSAGs calculations.
When the SSAGs were still only in draft form, the British Columbia Court of Appeal released its decision in Redpath v. Redpath, 2006 BCCA 338:
Now that [the SSAGs] are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention.
In other words, if a judge did not use the SSAGs, or put too little weight on them, it could give rise to an appealable error. Given this decision, the SSAGs are used consistently in British Columbia as a starting point to determine the quantum and duration of spousal support.
All cases point out that the SSAGs calculations should not be used blindly without consideration for what makes a particular family unique.On the other hand, in the early days of the SSAGs, the Alberta Court of Appeal said that a judge was only required to consider the factors set out in the Divorce Act (see Sawatzky v. Sawatzky, 2008 ABCA 355 or Taylor v. Taylor, 2009 ABCA 354). The Court said judges should use the SSAGs as merely guidelines, a “starting point” or a “cross-check”, and such use should not “fetter a judge’s discretion”. The Court noted that “there remains more than one route available to trial judges in arriving at an appropriate result.” In Alberta, lawyers and litigants did not have confidence that their assigned judge would consider SSAG calculations. It was much more difficult to predict spousal support outcomes.
This is not to say that the Alberta Court of Appeal rejected the SSAGs altogether. Rather, they used the SSAGs as that “useful tool” and a “cross-check” to measure the appropriateness of spousal support awards. But using this tool was not considered a required starting point.
However, in January 2019 the Alberta Court of Appeal wrote that the SSAGs “have developed a certain strength in this jurisdiction over a period of time” (in Thompson v. Thompson, 2019 ABCA 7). And then, in April 2019, the Court went a step further and encouraged lawyers to provide SSAG calculations to judges and to think carefully about the appropriate inputs to the calculations and the relevant considerations under the Revised User Guide (in Wild v. Wild, 2019 ABCA 159). And, for the first time, the Alberta Court of Appeal affirmed the decision of the British Columbia Court of Appeal in Redpath. The Court said that a judge not explaining why their award falls outside of the SSAGs could be a basis for appellate review.
Lawyers, judges and ex-partners often use the Spousal Support Advisory Guidelines (the “SSAGs”) to help determine the quantum and duration of spousal support.Since the release of the Wild decision, several subsequent Alberta Court of Appeal decisions have cited it. There is good reason to believe that the Court’s comments in Wild will lead to greater confidence in the use of the SSAGs in Alberta. Though the SSAGs are still not law, they are something more than a respected textbook. They are a required starting point.
All cases point out that the SSAGs calculations should not be used blindly without consideration for what makes a particular family unique. The calculations should not used without reference to the considerations in the Revised User Guide. The calculations provide a range of amounts and durations. Consideration must be made for which numbers within that range are most appropriate.
Most people want to avoid court and settle instead. However, an ex-partner needs to know what the alternative to settlement (i.e. going to court) might look like. If it is difficult for a lawyer to predict what a judge would order for spousal support, it is difficult to advise their clients about how to settle. If we can have confidence that the court will start with the SSAGs, it is much easier to predict a likely outcome and therefore, much easier to reach an agreement outside of court.