DOJ Report Indicate SSAGs Are Working

A 41-page internal Department of Justice report obtained by the Canadian Press through a Access to Information Act request shows that the Spousal Support Advisory Guidelines (SSAGs) appear to be working well in jurisdictions where they have been adopted.

The SSAGs are not legislation and do not have the force of law. However, courts have strongly endorsed their use, and Prowse J.A. of the Court of Appeal for British Columbia described them in Yemchuk v. Yemchuk as a “useful tool,” but emphasized they were only intended to reflect the current state of the law, and did not consider entitlement.

Larlee J.A. of the Court of Appeal of New Brunswick stated in S.C. v. J.C.,

[5] …The guidelines have been referred to in many ways: a check, a cross-check, a litmus test, a useful tool and a starting point. But it is my view that whichever term one likes to employ, their use, through the available software, will help in the long run to bring consistency and predictability to spousal support awards. Not only will they foster settlement, they will also allow spouses to anticipate their support responsibilities at the time of separation.

But the strongest endorsement has come from the Ontario Court of Appeal in Fisher v. Fisher, where Lang J.A. indicated that the SSAG range of spousal support assist in informing the appellate standard of review,

[103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

Lang J.A. also noted the numerous exceptions and limitations to the SSAGs, and that they are not to be used in every circumstance. An extreme example of this is the decision by Justice Quinn in Bruni v. Bruni, where he ordered only $1.00 a month in spousal support. The decision not only attracted media attention for the unusual support amount, but also due to the colourful language used by Quinn J. His ruling begins as follows,

[1] Paging Dr. Freud. Paging Dr. Freud.

[2] This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.

[3] In addition to the volatile issues of custody and access, this application raises a question as to whether grounds exist to set aside the separation agreement of the parties.

The main exception across Canada is in Quebec, where the 2006 Court of Appeal decision in G.V. v. C.G. rejected use of the SSAGs by adopting the previous Supreme Court reasoning in Moge v. Moge that support calculations should not be formulaic. The court refused to clarify principles in apply the SSAGs because they were only advisory in nature, which has been the general position for Quebec trial courts until last summer, with a decision that may indicate a change in direction.

The report states the highest use in B.C. and Ontario, two provinces which were the leaders in adopting the SSAGs,

From survey responses, spousal support cases in British Columbia and Ontario are more likely to be settled within the [guideline] ranges for both amount and duration than cases in other parts of Canada.

The survey included interviews with 34 key members of the Canadian legal community, and an additional 461 e-mails,

Key informants noted that the [guidelines] aid spousal support negotiations by providing an objective starting point for discussions, narrowing the range of possible outcomes, and helping to shape client expectations about amount and duration.

But given the complexity of the SSAGs, especially the with-child formula, there are some questions of accessibility to the public for the area of law with the highest level of self-representation. In direct response to this concern, one of the projects I’ve been involved with is My Support Calculator, which is the only site in Canada that can provide free and accurate child and spousal support calculations to the public. The site only provides a basic calculation, and does not include Quebec for the reasons identified above, but might be the first step in educating the public about family law litigation.




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