Vancouver spousal support exceptions under the Spousal Support Advisory Guidelines (“SSAG”) affect the amount and duration that spousal support is paid. Many Vancouver family law clients are surprised to learn about how important these exceptions to the amount and duration of spousal support are. Rana Yavari, one of our passionate Vancouver spousal support lawyers created this great summary of Vancouver spousal support exceptions and how they might impact your spousal support case.
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While spouses would still have an “obligation” after the marriage breakdown to contribute to their own support in a manner commensurate with their abilities, the ultimate goal is to alleviate the disadvantaged spouse’s economic losses as completely as possible, taking into account all the circumstances of the parties. When someone is entitled to receive spousal support, the Spousal Support Advisory Guidelines describe different formulas that may be used to calculate the amount and duration of spousal support. But Vancouver spousal support exceptions can change the outcome.
Vancouver Spousal Support Exceptions Lawyers Explain The Rules
The Spousal Support Advisory Guidelines set out the following exceptions to the application of the formula ranges for amount and duration:
- Compelling financial circumstances in the interim period;
- Debt payment;
- Prior support obligations;
- Illness and disability;
- Property division; reapportionment of property;
- Basic needs/hardship;
- Non-taxable payor income;
- Non-primary parent to fulfill parenting role under the Custodial Payor Formula; and
- Special needs of a child.
The exceptions come into play only if, after considering the ranges and restructuring, it is determined that these cannot adequately accommodate the facts of a case. Consideration of the Vancouver spousal support exceptions is the last step in the application of the Spousal Support Advisory Guidelines analysis. The spouse asserting that an exception applies bears the burden of proof.
Children with special needs
For instance, a child with special needs can raise issues of both amount and duration in spousal support, issues that may require an exception. The Spousal Support Advisory Guidelines provides a helpful commentary concerning Vancouver spousal support exceptions involving children with special needs:
A child with special needs will usually demand more time and resources from the care-giving parent, thus reducing that parent’s ability to earn in the paid labour market and pushing spousal support towards the upper end. … That lower base of income will generate a higher range for amount, of course, but here we speak of location within the range as well.
- Duration: A child with special needs can obviously affect the ability of the primary parent to obtain employment, whether part-time or full-time. This may require that the duration of support be extended beyond the length of the marriage or beyond the last child finishing high school, the two possible maximum time limits under the with child support formula.
- Amount: Again, a special needs child will often mean that the primary parent cannot work as much, perhaps not even part-time, and thus the amount of spousal support will be increased because of the recipient’s lower-income, an adjustment that can be accommodated by the with child support formula. But even then, there may be a need to go above the upper end of the range, to leave an even larger percentage of the family’s net disposable income in the hands of the primary parent, above the typical maxima of 54 per cent (1 child) or 58 per cent (2 children) or even 61 per cent (3 children). In these cases, spousal support awards go beyond the usual compensatory rationale under the with child support formula, to reflect a larger component of supplementing the children’s household standard of living.
The leading case on this exception is the decision of the Manitoba Court of Appeal in Remillard v. Remillard, 2014 MBCA 304 where the court overturned a trial decision that both imputed income to the wife, who had custody of the parties’ severely disabled child, and imposed a five-year time-limit on support after an 11-year marriage. The wife had a new relationship and a new child and was not working outside the home. The Court of Appeal found that the trial judge’s award failed to adequately reflect the wife’s entitlement to compensatory support and over-emphasized self-sufficiency. Given the child’s needs, it was unrealistic to expect the wife to work and become self-sufficient in five years. Relying explicitly on the special needs exception, the court awarded indefinite support, subject to review or variation. (The amount of the award was reduced $1000 below the SSAG mid-range to take into account the wife’s re-partnering.)
Another case on the child with special needs exception is the decision of E.B.G. v. S.M.B., 2015 BCSC 54. The wife’s lack of post-secondary education or professional qualifications restricted the work available to her. Her continuing role as the children’s primary caregiver, the care required for the child’s special needs, the husband’s time away from home for work and the failure of the arrangements for assistance with the child’s care from the husband and his extended family all imposed constraints on the wife’s availability for work outside her home. The wife was awarded spousal support for an indefinite period.
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