With Child Spousal Support Duration lawyers help you understand the answers to: How does spousal support duration work when you have children? In today’s blog on: How does spousal support duration work when you have children?, UBC Allard law student Arissa Javer explains the rules. Arissa spent time understanding family law with Lorne N MacLean, KC.
MacLean Law lawyers have set the record for high spousal and child support payments. Fraser MacLean just obtained a substantial award based on attributing an income of $ 1 million to the father who said her earned only $150,000 a year resulting in combined spousal and child support of nearly $30,000 monthly.
Reach out to any of our experienced family lawyers if you have a question about With Child Spousal Support Duration.
With Child Spousal Support Duration “Indefinite” Duration of Spousal Support
Spousal support is money that is paid by one spouse to the other after separation for financial support. This concept can be complex, especially when one considers associated factors such as the duration and amount of support, the financial situation of the spouses, and the length of the marriage. Judges frequently base their decisions about spousal support amounts on the Spousal Support Advisory Guidelines (SSAG), which were created to make spousal support more formulaic. These guidelines, while not law, propose appropriate ranges of financial support that are dependent on a variety of circumstances. These include the presence of dependent children, employment situations of spouses, child-care responsibilities, and income.
With Child Spousal Support Duration Formula Tel: 604 602 9000
Two formulas, which differ based on whether children are part of the relationship, are proposed under the SSAG. The without child support formula applies when spouses do not have children or have children who are on their own. On the contrary, the with child support formula, which will be discussed in this blog, applies when the relationship involves dependent children, or “children of the marriage” as described in the Divorce Act. More often than not, the same parent who pays child support (the higher income spouse) will pay spousal support to the receiving parent (the lower income spouse).
Amount of Spousal Support Under The With Child Support Formula Tel: 604 602 9000
When children are involved, the basic with child support formula is commonly used to calculate the amount of spousal support. This formula is designed so that the payor leaves the recipient with 40 to 46 percent of the spouses’ combined individual net disposable incomes. The formula is as follows:
- Determine the individual net disposable income (INDI) of each spouse:
a. Guidelines Income minus Child Support minus Taxes and Deductions = Payor’s INDI
b. Guidelines Incomes minus Notional Child Support minus Taxes and Deductions plus
Government Benefits and Credits = Recipient’s INDI
2. Add together the individual net disposable incomes. By iteration, determine the range of spousal
support amounts that would be required to leave the lower income recipient spouse with between
40 and 46 percent of the combined INDI.
Duration Of Spousal Support Under The With Child Support Formula
When dependent children are involved in the marriage, courts order initial indefinite spousal support. It should be noted that these “indefinite” orders are rarely permanent. Rather, they are subject to durational ranges which inform the actual duration of support as determined through review and variation processes.
Thus, the SSAG uses the term “indefinite” to mean “an order for support without a time limit at the time it is made”. To clarify that the concept of “indefinite” is not analogous to “infinite”, the SSAG adds “duration not specified” in parentheses whenever the term “indefinite” is used in the formulas.
The range of duration in the basic with child support formula is based on two tests: the length-of-marriage test and the age-of-children test. The upper end of the range is based on the longer duration of either the entire length of marriage or the length of time until the youngest child finishes school, and the lower end of the range is based on the longer duration of either one-half of the length of marriage or the length of time until the youngest child starts school full-time.
Usually, only one of the two tests will be used to arrive at both the upper and lower ends of the range.While the length-of-marriage test is generally used for longer marriages (ten years or more), the age-of-children test is commonly applied to shorter marriages (under ten years). The age-of-children test is complicated as it takes into account economic disadvantages connected to child-care obligations.
When applied to shorter marriages, it is future economic disadvantages that are considered rather than past disadvantages. This is because parents coming out of short marriages must continue caring for their children post-separation, which may adversely impact their employment opportunities. Thus, while shorter marriages may have lengthy durational limits at the upper end of the range, this is acceptable as the law recognizes continual economic drawbacks that arise from child-care responsibilities after separation.
It must be emphasized that these durational limits are not meant to generate time-limited initial orders. Rather, they are created to provide structure to continual processes of review and variation of initial orders that are indefinite. For instance, intervening events such as re-employment or remarriage may terminate spousal support sometime after the minimum time limit and before the end of the maximum
time limit. However, if support is still ongoing after the maximum time limit, then it is expected that the pay will come to an end on an application for review or variation.
In addition to these durational limits, the maximum duration spousal support will be payable for is also indefinite (duration not specified) when the marriage has spanned 20 years or longer, or when the marriage has spanned five years or longer and the years of marriage plus the age of the support recipient at the time of separation equals or exceeds 65 (“the rule of 65”). This is also the case in the without child support formula, however the ranges for duration under this formula for other situations are extensive.
New Appeal Case Provides Clarity on Spousal Support Tel: 604 602 9000
A BC Court of Appeal case of Small, which was released 2023, dealt with the issue of duration of spousal support when applying the with child support formula.
Small centers on the financial affairs of Ms. Kirsanova and Mr. Small following the breakdown of their 12-year relationship. Ms. Kirsanova and Mr. Small married in 2003 and separated in 2015. Ms. Kirsanova had previously lived in Russia, where she obtained a law degree. When she married Mr. Small, she quit her job and began to work miscellaneous jobs in Canada while Mr. Small worked for various companies. After their separation, the financial affairs of Ms. Kirsanova and Mr. Small remained entangled, but this came to an end in 2018. Ms. Kirsanova appealed this case in 2023 on the basis of four issues that werenot raised at trial. Of these issues, the fourth issue, namely misapplying the SSAG in imposing a
time-limited spousal support order of six years, is discussed in this blog.
The Issue With Enforcing A Time-Limited Spousal Support Order When Applying The With Child Support Formula
The trial judge in Small concluded that Mr. Small should pay monthly spousal support in the amount of $850 for the next six years following the date of trial (May 7, 2020). Her judgment is as follows:
[273] Using incomes of $100,000 and $35,000 for the respondent and claimant
respectively, and including $19,500 in s. 7 expenses, the “with child” SSAG calculation
suggests a low, mid, and high range of monthly spousal support of $314, $654, and
$1,008, for a duration of 6.35 to 12.7 years.[274] In my view, an award of spousal support in the mid to upper range is appropriate
in this case. There are two factors that I find particularly persuasive in locating support
along the range. The first is the strength of the claimant’s compensatory claim to spousal
support in light of the career sacrifices she made to support the family and the
respondent’s various business activities. The second, and related, factor that warrants
support above the mid-range is that the claimant faces inherent employment
disadvantage relative to the respondent as a result of the sacrifice she made in giving up
an established career in moving from Russia to Canada. While the claimant is certainly to
be encouraged to work towards a position of self-sufficiency, it can be expected to take
her longer to do so than might otherwise have been the case.[275] I consider that it is fair in the circumstances to order the respondent to pay the
claimant monthly spousal support in the amount of $850. While I acknowledge that this
will result in some disparity in terms of the parties’ net disposable income, I nevertheless
find that support at this level is justified by the factors I have identified. As for duration, in
my view it is appropriate for the respondent’s spousal support obligation to continue for a
further six years, terminating as of May 30, 2026.
However, the appellant posited:
[115] The challenge here is to the duration of the judge’s support order. Ms. Kirsanova
submits that the judge erred in imposing a cut-off date, and in doing so failed to apply the
SSAG properly. In particular, Ms. Kirsanova asserts, the judge misapprehended the
situation and failed to take into account that she was pronouncing an initial order for “with
children” support (the previous order having been a consent interim order). Such an initial
order should, as a matter of principle, be indefinite in the absence of a compelling reason
to the contrary. No such compelling reason was identified by the judge.
Following SSAG Relating To “Indefinite” Support When Dependent Children Are Involved Tel: 604 602 9000
The BC Court of Appeal decided:
[118] The fact remains that what she now says is in fact consistent with the structure of the
SSAG. That structure contemplates that in the case of spouses with dependent children, initial
orders should be “indefinite (duration not specified) in form, subject to the usual processes of
review or variation”. At the same time, the SSAG provides an understood outside limit on the
cumulative duration of spousal support that will inform the process of review and variation: see
Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department
of Justice, July 2008) at § 8.5 and § 8.5.2.[119] It is clear that the judge did not have regard to this structural principle—for an obvious
reason: the parties did not raise or rely on it. Nevertheless, it remains an important factor that was not discussed or considered. I should not be taken as saying that in all such cases it must be
wrong to impose a time limit as the judge did, but if a durational limit is to be imposed, the judge
should explain her basis for departing from the structure of the SSAG. The result, through no fault of the judge, was an error in principle.
What Happened To How Long Spousal Support Was Payable?
In the end, the BC Court of Appeal replaced the trial judge’s order requiring Mr. Small to pay spousal support for a limited period of six years with the term that he pay $850 per month indefinitely as per the SSAG. This is subject to a review to be carried out nine years post-separation (October 6, 2024). If Ms. Kirsanova wants to vary the spousal support order prior to this date on the basis of changing circumstances, she is free to do so.
Duration of spousal support is a complicated topic as there are many details and regulations to consider.
However, with the right family lawyers, both the amount and duration of spousal support can be
accurately determined. Contact us in Vancouver, Kelowna, Victoria and Surrey or anywhere else across BC or in Calgary.
