A little Background…
Since my separation and divorce 12 years ago, in addition to paying child support I was also ordered to pay spousal support. There was never specific reason for entitlement or length of commitment given. In addition and although the divorce law states that each parent is responsible for the financial well being of the children and to attain self sufficiency to the extent possible, I was the only one held accountable.
An Overview of Spousal Support….
Spousal support is the payment of money by one spouse, the “payor,” to the other spouse, the “recipient.” Spousal support is paid to defray the recipient’s living expenses and help him or her get by as a single person who no longer has the benefit of the payor’s income and other contributions to the household that the person enjoyed while the parties lived together.
Entitlement to Receive Spousal Support….
There is no automatic requirement to pay spousal support the way there is for child support. As a result, the entitlement of a spouse to receive support will be decided by the courts on the particular circumstances of that spouse and his or her relationship with the other spouse.
In the divorce act of 1985 guidance for spousal support was provided by setting out four objectives for determining spousal support orders.
15.2 (6) An order … that provides for the support of a spouse should:
recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8) [i.e. through child support];
relieve any economic hardship of the spouses arising from the break-down of the marriage; and
in so far as practicable, promote the economic self- sufficiency of each spouse within a reasonable period of time.
From: JP Boyd’s Family Resource website…
Some applicable Court Quotes from rulings….
Bear in mind the words of the British Columbia Supreme Court in the 1997 case of Dumais-Koski v. Koski:
Neither common-law relationships nor marriages are life-long pension plans. Following the end of a common-law or married relationship, each party has a duty to become independent and self-sufficient as soon as possible. “Marriage is not a legal institution created for the redistribution of wealth.”Or, as the Alberta Court of Queen’s Bench commented in the 2005 case of V.S. v. A.K.:
“A person does not acquire a lifetime pension as a result of marriage. Likewise, marriage is not an insurance policy.” A party who is self-sufficient or is capable of becoming self- sufficient at the end of a relationship will not usually be entitled to receive spousal support.
Spousal Support Advisory Guidelines:
In 2001, the federal Liberal Government’s Department of Justice initiated a project with an “advisory working group” comprised of Judges and Family Lawyers to look into the feasibility of developing uniform guidelines for the calculation of spousal support.
Stop the presses. The advisory group for this project was made up of Lawyers and Judges. I’ll provide my comments later but just can’t let this go by. Without even reading the report one can already guess the result. The advisory guidelines are overly complicated, don’t include many family expenses (garbage in / garbage out) have as its basis income sharing which contravenes the divorce act, lack clarity, necessitate self serving legal involvement, can be interpreted many ways, have no default positions and promote conflict.
Very few would disagree with an effort to better bring more certainty and predictability to the determination of spousal support but unlike the child support guidelines; these advisory guidelines do not even have the binding force of law.
Given the legal system track record,
- how can anyone expect a non-biased approach?
- Where is the government, human rights commission, accountants, social work professionals and Legislative representation?
As a result of this effort the Spousal Support Advisory Guidelines (SSAG) were introduced on January 1st, 2005.
In my personal example, the guidelines were blindly used by Judge Czutrin.
The inputs to the computer program, available only to lawyers, which is required to calculate the amount, were not at all indicative of my personal situation. Examples include:
Legal costs were not included and are the major expense in dealing with divorce and required every time a change is made.
The Costs related to supporting children living with the father are not included in the formula.
Costs for non-custodial parents (fathers) to maintain relationship with their kids is not included.
Costs such as transportation and other expenses for fathers to earn monies to pay support in the first place are not included.
- The calculation is based on income sharing which contradicts the Divorce Act.
- Payment of Spousal support has no impact on the Child Support amount yet, as I found out, when Child Support ends, Spousal Support payments go up.
Is it “fair” that Child and Spousal Support be paid on top of the costs that are required to earn income in the first place and only incurred by the payer? Since the formulas used are based on net distribution of income, this has the immediate affect of bias in favour of the recipient and constitutes income sharing which is contrary to the law. There’s a surprise. But what do you expect from a system that rewards loafers and punishes those who do what they can to provide for their families. Another example of how Judges create deadbeats.
The website www.bcfamilylawresource.com is an excellent resource for more information on Spousal Support.
Following is taken from a letter posted on the site by a lawyer expressing concerns to the Minister of Justice as feedback to SSAG on February 23, 2005.
To: Minister of Justice
Despite all the protestations of the working group that the SSAG are of no force and effect, and that the department of Justice has no intention of giving the SSAG regulatory effect, the formulae will be adopted by the courts. My concern lies in the potential for an uncritical adoption of the SSAG by the bench and bar, without the sober analysis it deserves.
I predict that we will, in short order, have case law interpreting the various “factors,” “considerations” and “exceptions” the SSAG provides. It is not rational to have case law interpreting something which does not have the force of law or, at a minimum, the official approval of the federal government.
Either the SSAG is given regulatory effect in an open and frank manner, or at a minimum, the official approval formally withdrawn. Already the SSAG are seeping into the Justice System.
The Transparency and Accessibility of Justice, To be blunt, the “with children” formulae are so mind-bogglingly complex that they constitute a barrier to fundamental justice.
Let me summarize the calculations the basic “with children” formula prescribes:
from the payor’s gross income, deduct federal taxes, deduct provincial taxes, the amount of child support being paid, deduct the amount of special expenses being paid, and deduct EI and CPP, giving you the payor’s individual net disposable income (“INDI ”); from the recipient’s gross income, deduct federal taxes, deduct provincial taxes, deduct a notional amount of child support, deduct the amount of special expenses, deduct EI an d CPP, add the Child Tax Benefit, and add the National Child Benefit Supplement, giving you the recipient’s INDI; add the two INDIs together, and calculate 40% of this number and 46% of this number, giving you the family net disposable income (“FNDI”); and, subtract the recipient’s INDI from the FNDI, giving you the amount of spousal support to be paid over the year.
Now, if this were the end of the calculation, everyone would probably be happy. Anyone with a set of tax tables, a knowledge of the different rules for the Child Tax Benefit and the National Child Benefit Supplement, and a knowledge of the rates of deductions for EI and the CPP could accurately work out a result from the formula. This is not the end of the calculation, however as the formula requires the tax effect of spousal support to be taken into account in arriving at a true 40% and 46% figure. Now, a litigant using the formula requires the tax effect of spousal support to account for the tax effects of the payment of spousal support;
from the payor’s gross income deduct the amount of spousal support, deduct federal taxes from this income, deduct provincial taxes from this income, deduct child support paid at the gross income, and deduct EI and CPP paid at the gross income; add spousal support to the recipient’s gross income, deduct federal taxes from this income, deduct provincial income from this income, deduct a notional amount of child support on the gross income, deduct EI and CPP paid at the gross income, and add the Child Tax Benefit and National Child Benefit Supplement calculated at the new income; add the two new INDI’s together, and calculate 40% of this number and 46% of this number, giving you the new FNDI; and, subtract the recipient’s INDI from the new FNDI, giving you a revised amount of spousal support to be paid over the year.
Unfortunately, the formula doesn’t end here, since this formula will not provide a true 40% of 46% of the actual FNDI. Since there appears to be no formula that will allow a quick calculation that takes into account the tax effects, this calculation must be repeated over and over, changing the amount of spousal payable by an arbitrary number, until the true after-tax 40% and 46% numbers are reached.
Making matters worse, each iteration of this calculation potentially involves: changes in the provincial tax brackets of each party; changes in the amount of Child Tax Benefits payable; and, changes in the amount of National Child Benefit Supplement payable. This would give even a seasoned CGA and aneurism.
It is, I respectfully submit, a fundamental breach of transparent, accessible justice when a litigant must have a computer program – and a computer – to calculate his or her potential spousal support payments. Thousands of lawyers across the land will shortly be buying DivorceMate’s new product but lawyers can, by and large, afford it. I cannot see how justice is served by putting lay litigants to this cost.
The “with children” formula is not intuitive, it’s not transparent, and it is not particularly straightforward. The goal of simplifying and standardizing the calculation of spousal support is not accomplished when determining the quantum payable is akin to consulting the Oracle ad Delphi, a mysterious black box, or the all- powerful Oz. A reasoned decision on the quantum of support payable cannot be arrived at by plugging numbers into a machine and seeing what comes out.
If child support orders were not outrageously high, and instead were based on actual child-related costs, where both parents share the responsibility of meeting those costs, then there would be a monumental drop in cases. To most paying support is quite an acceptable responsibility. This is not the question. But since courts thrive on conflict, they know that reasonable support and fair decisions will only cause the conflict to subside and hurt business. Even duration for support is not spelled out as it would negate the need for endless trips to the court.
Conclusion:
Again, I urge you to instruct your department to withdraw the draft proposal SSAG as soon as possible. I support the concept of normative spousal support guidelines, but not in the form presented in this proposal.
I believe that it was Lord Hewart who said, and I am paraphrasing of course, that justice must not only be done, it must be seen to be done. Under the SSAG, the determination of spousal support will become an opaque computer calculation incapable of interpretation or rational explanation. This is not Justice.
This blog post includes an excerpt from the 2006 book Courts From Hell by Frank Simons
About Courts from Hell by Frank Simons
This blog post is an excerpt from his book Courts From Hell – Family InJustice in Canada. Frank Simons tells us since the introduction of the so-called “No-Fault Divorce” in Canada, the divorce industrial complex has evidenced unprecedented growth estimated at $10 billion per year. The problem is that the Legal / Court industry thrives off the $B’s generated by Taxpayers and Families in crises. For this, they provide no value and in fact cause destruction of families by unnecessarily removing fathers from children’s lives and lowering the standard of living for all family members. This is done through unnecessary litigation, biased decisions and unreasonable support orders which escalate the conflict to perpetuate the status quo in support of their self-serving business. The Solution is to update Ontario divorce laws to reflect parental equality and get families out of court eliminating significant grief and $’s wasted by families and taxpayers.
