by Dan Pinnington

The OBA has graciously allowed Avoid a Claim to reproduce an excellent tip sheet by The Hon. Justice Stanley Scherr for presenting spousal support claims. It was previously published in Matrimonial Affairs, the newsletter of the Ontario Bar Association family law section.

  1. Always come with the Spousal Support Advisory Guideline (SSAG) software calculations for any appearance where you are seeking spousal support.
  2. Imputation of income is often on the table, so bring different SSAG scenarios based on a range of incomes.
  3. Make sure that you also present NDI (net disposable income) software calculations. The court will want to see that the support level ordered will create an equitable distribution of net income.
  4. It is helpful to bring Standard of Living (SOL) software calculations. It not only assists the court in determining the appropriate support level, but it assists the court in settling the case, as the court will have hard evidence to show to the parties that the support level leaves them with equitable standards of living.
  5. It is important to understand how the SSAG work. As a starting point, go on the internet and read any article on the subject by Professor Rollie Thompson.
  6. Make sure that you properly input data when running the software calculations. Include proper deductions and credits set out in each party’s Income Tax returns and input special expenses correctly. If you haven’t done so already, take a tutorial in how to effectively use the software. If you and the other party have different software calculations, go through the respective calculations carefully and clear up the difference ahead of the court appearance, so that everyone is working from the same playbook.
  7. Monthly budgets should be provided. It is very helpful when three budgets are provided; the first to show the lifestyle that the parties had while they were living together; the second to show the current budget and a third to show a reasonable proposed budget.
  8. It is useful to research your judge in advance of the court date to understand how they decide spousal support cases. It is also useful to see how they write these decisions and model your presentation of the case consistent with this style.
  9. It is helpful to set out what you will be asking for at the very beginning of your material. For example:

    10. Mary and Bob have been married for 22 years. They separated on January 1, 2008. Mary will be seeking indefinite spousal support in the sum of $2,000 per month, which is the upper range of the Spousal Support Advisory Guidelines. Mary asks that the support be ordered retroactive to the date of separation.

  10. Set out the basic information for the support analysis at the beginning of your material. This would include the parties’ ages, the length of marriage, particulars about the children, childcare obligations, levels of education and work history.
  11. You must establish entitlement to spousal support before applying the SSAG. Structure your evidence about entitlement in accordance with the spousal support entitlement category you are claiming (contractual, compensatory and non-compensatory). Use them as headings.
  12. Be sure that the evidence covers the relevant spousal support purposes and considerations set out in the legislation, whether the claim is under the Divorce Act or the Family Law Act.
  13. Set out the reasons, with supporting evidence, about why you want spousal support to be ordered at either the upper or lower end of the SSAG range, or in the appropriate case, outside of the SSAG ranges.
  14. If you are making a retroactive claim, address the factors set out in Bremer v. Bremer [2005] Canlii 4191 (OCA):
    1. the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor’s ability to pay;
    2. the underlying basis for the ongoing support obligation;
    3. the requirement that there be a reason for awarding retroactive support;
    4. the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital;
    5. the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure;
    6. notice of an intention to seek support and negotiations to that end;

      7. delay in proceeding and any explanation for the delay;

    7. and
      the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued:
  15. If you feel that the SSAG do not provide an appropriate award, consider whether restructuring the award will accomplish this. Restructuring either stretches out the duration of the award and lowers the quantum, or increases the quantum, but lowers the duration. The total dollar amount of support over the life of the award remains the same.
  16. If you feel that restructuring will still not provide an appropriate award, check and see if any of the “exceptions” set out in Section 12 of the SSAG apply. These are:
    1. Compelling financial circumstances in the interim period;
    2. Debt payments;
    3. Prior support obligations;
    4. Illness and disability;
    5. Compensatory exception in shorter marriages without children;
    6. Property division; for example high property awards;
    7. Basic needs/hardship: without child support, custodial payor formulas;
    8. Non-taxable payor income;
    9. Non-primary parent to fulfil parenting role under the custodial payor formula;
    10. Special needs of child;
    11. Section 15.3: small amounts, inadequate compensation under the child support formula.
  17. The NDI and SOL Calculations are very helpful when arguing the applicability of the SSAG, or what support range to apply within them.
  18. Charts, setting out: the annual incomes of the parties, support paid each year and the support being claimed each year are very useful for the judge in evaluating retroactive claims.
  19. In terms of format, double-spaced affidavits with clear headings are the best communication tool. Judges generally have mediocre eyesight. Never use less than a 12 point font.
  20. Judges have a lot of material to read, with little time to do it. Make your points clearly at the beginning of each paragraph, and use the rest of the paragraph to support the point. Don’t make the judge have to wade through dense text to learn the point.
  21. Some lawyers effectively argue spousal support cases with a separate exhibit book that will include tax returns and software calculations.

The following should be kept in mind when presenting spousal support cases in the Ontario Court of Justice (OCJ):

  1. The OCJ has no jurisdiction to deal with divorce, property or exclusive possession of matrimonial home claims. If spousal support and property issues will be intertwined, the case should be heard in the Ontario Superior Court of Justice (SCJ).
  2. The OCJ generally does not have jurisdiction to change an order made in the SCJ, even if the order was made under the FLA. See: Dobert (McCullogh) v. McCullogh, 2008 ONCJ 673 (Ont.C.J.).
  3. In Doherty-Mulder v. Mrowietz, (2003) 43 R.F.L. (5th) 313 (Ont. SCJ) the court held that the SCJ has no jurisdiction to change an OCJ order on a motion to change. The SCJ’s jurisdiction is limited to hearing appeals from the OCJ.
  4. The OCJ has jurisdiction to deal with requests to change spousal support contained in domestic agreements that have been filed with the court under section 35 of the Family Law Act (FLA). Parties can’t contract out of this right (s. 35(2) of the FLA).
  5. If a domestic agreement for spousal support has been filed with the court and a party wishes to change it, this is a Rule 15 motion pursuant to section 37 of the FLA. However, this motion can only be heard under section 37 if the parties were spouses when the original decision was made or varied, or when the separation agreement was filed with the court under section 35 of the FLA. Huazarik v. Fairfield, [2004] O.J. No. 798 (SCJ) (where the agreement was signed and filed after the Divorce, the court had no jurisdiction); Abernethy v. Peacock, 2009 CanLII 25128 (ON S.C.) (where the agreement was signed and filed before the Divorce – there was jurisdiction).
  6. If a case for spousal support that has been started under the FLA and has not been adjudicated and a Divorce proceeding is started, the FLA proceeding is stayed pursuant to s. 36 of FLA, unless the FLA court orders otherwise.
  7. The OCJ has jurisdictional limitations in making spousal support orders that are set out in s. 34(2) of the FLA. The court cannot:
    1. Order that lump sums be paid, or be held in trust (this can be an issue on retroactive support claims);
    2. Transfer or vest property;
    3. Require a designation of spouse who has an insurance policy to irrevocably designate the other as beneficiary or
    4. Secure payment of the order, by a charge on the property or otherwise

      5. Unless the order:

      1. Is for the provision of necessities or,
      2. To prevent the spouse from becoming or continuing to be a public charge.

      *Justice Stanley Sherr presides in the Ontario Court of Justice at 47 Sheppard Avenue in Toronto

      Cross posted on Slaw.ca

    Categories: Family Law