Spousal Support Advisory Guidelines Explained for Ontario Families

If you are separating, you may have heard a lawyer or judge refer to 'the guidelines' for spousal support. They shape many negotiations, yet they are often misunderstood.

This article explains what the Spousal Support Advisory Guidelines (SSAG) are, whether they bind a court, and how they generally work in Ontario.

What the SSAG are, and whether they are binding

The SSAG are not law, but judges often base their spousal support decisions on them. They were designed for the federal Divorce Act, and courts and lawyers also often use them under provincial legislation such as Ontario's Family Law Act.

Think of them as a well-known reference point. They give a range for amount and length, and a judge or the parties can land inside or outside that range depending on the facts.

Entitlement comes first

The SSAG do not decide whether you are entitled to support. Entitlement must first be established under the applicable law. An income gap on its own does not create entitlement, and it must be proven or agreed before the formulas apply.

In Ontario, you may be eligible for spousal support if you were married, if you lived together as a couple for at least three years, or if you were in a relationship of some permanence and had a child together.

Entitlement has three possible bases:

• compensatory, meaning loss or disadvantage from roles in the relationship
• non-compensatory, meaning need
• contractual, which can come from a formal domestic contract or from an implied or informal agreement

The two main formulas

Which formula applies depends mainly on whether there is child support.

Under the without-child-support formula, the top of the range cannot exceed the amount that would equalize the spouses' net incomes. Support is indefinite if the marriage lasted 20 years or more, or under the 'rule of 65': the marriage lasted at least five years and the years of marriage plus the recipient's age at separation total 65 or more.

Under the with-child-support formula, the upper limit is the longer of the length of the marriage or the date the youngest child finishes high school. The lower limit is the longer of half the length of the marriage or the date the youngest child starts full-time school.

Exceptions and limits

The formulas do not apply mechanically. Above a payor income of $350,000, discretion is used, and incomes below $20,000/$30,000 require adjustments. Short marriages produce very limited awards, if there is entitlement at all, and the rule of 65 does not apply to marriages under 5 years.

Recognized grounds for going outside the ranges include:

• compelling financial circumstances at the interim stage
• debt payments and prior support obligations
• illness and disability
• property division, basic needs or hardship
• non-taxable payor income and a child's special needs

There is also a compensatory exception for short and short-to-medium marriages without children, assessed individually. When a short marriage breaks down while a sponsorship agreement is in place, the sponsorship agreement may be an independent factor that leads to an amount or duration outside the formula ranges. A zero range under the with-child-support formula is not the same as no entitlement, since it may only reflect a current inability to pay.

The SSAG start from the definition of income in the Federal Child Support Guidelines. For a spouse who is not working but should be, a court can readily impute minimum-wage income, while imputing anything higher requires evidence. Ontario's spousal support page notes that the free online SSAG calculator it links to considers only employment income and simple calculations.

Changes, reviews and next steps

'Indefinite' support does not necessarily mean permanent. It means no time limit can be set when the order or agreement is made, and support stays subject to variation and review. A review is different from a variation: a variation requires a material change in circumstances, while a review is more like an initial application. The SSAG apply on both but should be used with considerable caution where complex entitlement issues arise.

The SSAG apply to interim orders as well as final orders, and where income evidence is thin, ranges can be estimated using alternative income figures. Any period of interim support, and informal voluntary support, counts toward the SSAG duration limits.

If an order or agreement says nothing about retirement, retirement is usually a material change that can support a variation, but courts closely examine early retirement. A recipient's remarriage or new relationship does not automatically end spousal support, though support is often reduced and sometimes ended.

• Confirm your dates of marriage or cohabitation and separation.
• Collect income records for both spouses.
• List any child support, debts or illness that might matter.
• Ask a family lawyer how the ranges apply to your facts.

Frequently asked questions