Variations and the Spousal Support Advisory Guidelines
The Ontario Court of Appeal in the decision of Gray vs. Gray, 2014 CarswellOnt 13066 (ONT. C.A.) has issued yet another ruling which clarifies the applicability of the Spousal Support Advisory Guidelines within the context of a spousal support variation proceeding.
As a result of this decision, it is clearly no longer appropriate for counsel or the Court to disregard or downplay the Spousal Support Advisory Guidelines in variation proceedings, and there is now a requirement to undertake a careful analysis in every case to determine whether applying the Guidelines is helpful and appropriate given the specific facts of the case.
In this case, the parties were married in 1980 and had four children together. They separated after approximately 15 years of marriage. At the time of the trial, the husband had remarried and was earning an income of approximately of $175,000.00 per year. By contrast, the wife had not worked outside the home, had significant health problems, and was earning approximately $33,500.00 per year from disability benefits.
The Divorce Order required spousal support payments in the amount of $800.00 per month, which was much less than needed by the wife, however the Court concluded that the child support and the needs of the children should take priority over spousal support at that point in time.
During the variation proceeding, the Court held that even though the child support Order should now be terminated, there should be no increase in spousal support and that spousal support should continue in the amount of $800.00 per month on an indexed basis as the wife’s need had not increased.
In additional to finding the wife was entitled to increased spousal support on a needs and compensatory basis, the Court of Appeal noted that while the Spousal Support Advisory Guidelines are neither legislated nor binding, they are an important and helpful tool in assisting Courts to measure the quantum and duration of spousal support. Although the Judge hearing the variation referenced the Spousal Support Advisory Guidelines, there was no specific consideration or analysis using the Guidelines in arriving at the final quantum of spousal support.
Given the fact that the Court of Appeal concluded that the 1998 support Order was clearly lower than the amount that ought to have been paid (since priority was given to child support at the time) the Court held that the Spousal Support Advisory Guidelines should have been considered as they represent a critical tool in assessing ranges of spousal support and should be routinely consulted in variation proceedings.
Though not an exhaustive list, the most common cases where the Court should apply the Spousal Support Advisory Guidelines in a variation proceeding are post-separation increases in income, termination of child support payments and the financial implications of second families.
The bottom line is that the Court must undertake an analysis of the specific factual matrix in each case to determine whether the Spousal Support Advisory Guidelines are appropriate. This binding decision from the Ontario Court of Appeal should make clear that the previous argument that the Spousal Support Advisory Guidelines only apply to initial spousal support claims is no longer an accurate statement of law and that the facts of each case must be carefully considered to determine whether it is appropriate to apply the Spousal Support Advisory Guidelines in a variation proceeding.