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The Hammer Comes Down
on spousal support

Two basic formulas to calculate spousal support based on current advisory guidelines

By Linda Hammerschmid

In 2005 the Feds tasked two professors, Carol Rogerson, University of Toronto Faculty of Law, and Rollie Thompson, Dalhousie University, to prepare guidelines to determine levels of spousal support that could be payable under certain scenarios.

Without regurgitating all such scenarios, the guidelines consider the following criteria:

– Length of marriage
– With and without children
– Property division upon divorce
– Remarriage, second families
– Exceptions

A final report was presented in 2008 after consultations across the country were conducted.

Obviously, subsequent legislation and Supreme Court cases (such as Contino vs. Contino in 2005 which set out the approach to determine child support under shared custodial situations) impact the guidelines which, in any event, remain but advisory as they are not law.

However, several provinces, including Quebec, may use the guidelines both in negotiations and in arguments at Court. Note that our Quebec Court of Appeal specifically ruled the guidelines to be non binding. This does not rule out their use as a tool, amongst others, to factor into solutions in divorce cases under the Federal Divorce Act and Judges may base decisions on the guidelines.

It is also advisable to verify each Province’s use of these guidelines and to consult an attorney to ensure you have in fact a claim/obligation vis-à-vis spousal support. Also of importance is the fact that child support, from sea to shining sea, is determined prior to determining whether spousal support is due, and in Quebec, on the merits of a divorce, spousal support is assessed after property division has been decided since the values of same and the revenues which may flow from them impact support determination.

Even if you are happily married, proceeding with these calculations can be an eye opener.

It is important, critical actually, to remember that nothing is ever set in stone in a courtroom and many factors, other legislation and yes, biases, play a role in the outcomes of each case.

You will find one of two basic formulas here to entertain you, from Section 7.3 of the Spousal Support Advisory Guidelines which can be found on the Government of Canada Department of Justice website at justice.gc.ca under Spousal Support Advisory Guidelines.

Even if you are happily married, proceeding with these calculations can be an eye opener. And if you don’t have the revenue information of your spouse, you already have a problem! This information (the real information, not simply what tax savvy advisors input on tax returns) should be freely exchanged between couples. If your spouse is hiding the real numbers, then you have a real problem and should address it directly, soon rather than later.

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Practical Case/Formula

From the Spousal Support Advisory Guidelines Report

To determine the amount of support to be paid (without child support):

1. Determine the gross income difference between the couple:

Spouse’s revenue – less – Your revenue = ($ gross income difference)

2. Determine the applicable percentage by multiplying the length of the marriage by 1.5% – 2 % per year:

1.5% x number ___ of years of marriage = ___ percent
to
2% x number ___ of years of marriage = ___ percent

3. Apply the applicable percentage to the income difference obtained per #1 above.

___% x ($ gross income difference) = support per year $___________ (per month (÷ 12) = $___________).
to
___% x ($ gross income difference) = support per year $___________ (per month (÷ 12) = $___________).

Duration would be indefinite if the length of the marriage was 20 years or more.

Feature image: Keromi Keroyama via StockPholio.net
Read also: The Hammer Comes Down on careless road users


linda hammerschmid

Me Linda Hammerschmid is an attorney and has been practicing Family Law since 1982. She is the Senior Partner at Hammerschmid & Associates at 1 Westmount Square, Suite 1290. She is a founding and current member, and past Secretary (28 years) of The Family Law Association of Quebec. She is a frequent guest on CBC TV/Radio, CTV and CJAD, providing commentary on Family Law. You can also hear her regularly on the CJAD show “Passion” with Dr. Laurie Betito, the last Thursday of each month. She and her dog Mac are members of Therapeutic Paws giving joy to the less fortunate. Me Hammerschmid can be reached at (514) 846-1013 or by e-mail at <hammerschmid@vif.com>. All inquiries will be treated confidentially.


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There are 2 comments

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  1. Brian Johnston

    Seems to all come down to simple math calculation, eventually morphed into a magic algorithms.
    In depth studies at first, then some bureaucratic geek will turn this all into keying the data into the magic algorithms thereby setting a presadent which does not take the full reality of couple’s resources.
    Better to educate couples about prenups.


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