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Carol Rogerson July 15, 2014 Rollie Thompson

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1 Carol Rogerson July 15, 2014 Rollie Thompson
TEN YEARS OF THE SSAG Carol Rogerson July 15, Rollie Thompson

2 AGENDA History How the SSAG were created, current status
Appeal decisions Current SSAG issues SSAG successes, problems Spousal guidelines internationally Materials: Appeal Decisions “Canada’s Experiment” 2011 FLQ article “Ideas of Spousal Support Entitlement”

(1) Early Research ( ) (2) Background Paper (December 2002) (3) Sneak Preview (July 2004) (4) Draft Proposal (January 2005) Immediate use, software available (5) Appeal Court Decisions: BCCA August 2005, NBCA April 2006, ONCA January 2008 (6) Detailed Feedback in (7) Revised Final Version (July 2008) (8) New and Improved User’s Guide (March 2010) (9) Monitoring for New Developments by DOJ Software updates taxes, etc.

4 SSAG CONSTRUCTION Not legislated, informal
National: divorce and other support claims Ranges for amount and duration, threshold entitlement determined first Formula ranges for “typical” cases, note exceptions and departures Formulas reflect dominant patterns Sophistication required, complex issues Software necessary for most cases

5 WHY THE SSAG IN 2005? Experience with Child Support Guidelines
Widely viewed as success Familiarity with income-based guidelines SCC in Bracklow (1999) confused us No guidance on amount, duration Rogerson, Thompson papers in 2001 Outcomes inconsistent, unpredictable Frustration of spouses, Bar, bench Desperate for guidance Federal Justice commitment Advisory, professional

To reduce conflict, encourage settlement To create consistency and fairness, more predictability, thus legitimacy To reduce legal costs, improve efficiency of process To provide a starting point for solutions in CDR/CFL/mediation/settlement confs. To provide basic structure for further judicial elaboration in decisions

Background Paper (December 2002) SSAG Final Version (July 2008) New & Improved User’s Guide (March 2010) (2014 updated version forthcoming) (2009), 28 Can.Fam.L.Q. 193 (SSAG issue) (2011), 45 F.L.Q. 241 (materials) Website: advisory-guidelines

8 SSAG CURRENT STATUS Final Version (2008) still applies
Monitoring: no major changes since 2008 Software adjusts for tax, benefit changes New User’s Guide (spring 2015) will reflect recent judicial decisions new patterns can emerge Look to decisions, trends in other provinces Smaller provinces look to BC, ON for e.g.s Less-SSAGish provinces look to SSAG provinces

9 SSAG COURT DECISIONS 2014 BC, NB, ON, PEI: appellate endorsement
NL, SK, MB: extensive use at trial NS, AB: wide,erratic use, appellate confusion QC: just beginning, 2011 QCCA decision 180+ CA decisions: BC 83, ON 32, AB 23, NB 15, NS 9, MB 6, QC 8, MB 6, PEI 1, NL 1 2400+ trial decisions: BC 857, ON 801, AB 157, NS 153, SK 133, NB 104, NL 68, MB 56, QC 53, Terr. 16, PEI 7 No SCC decision: leave denied 7 times

Fewer interesting appeals since 2012 Older appeals cited, e.g. Fisher, Chutter BCCA: 9 of19 appeals raised “imputing” issues E.g. PRM, Brandl, Kouznetsova, Shen, KD, Marquez ONCA: Reisman, 10-year time limit struck, indefinite after 20-year marriage MBCA: Kynoch, cautious re SSAG use, amount increased, but still below range (?) QCCA: similar to Kynoch, 2011 QCCA 1554 NBCA: Smith (2011), no “error” not to use SSAG, but reasons required, then mid-SSAG ordered…

11 ISSUES FOR ANOTHER DAY Focus today on SSAG, but not:
Threshold/no entitlement Spousal support agreements, Miglin Variation, material change after LMP v LS Income determination mechanics Retroactive spousal support

SSAG only AFTER entitlement established Social assistance (incl. ODSP) is NOT income Include any pre-marital cohabitation Always consider s. 7 expenses BEFORE SSAG Discount lump sum for non-deductibility Know how outcomes calculated! Be transparent about assumptions, esp. income

Fewer “ordinary” cases reported, more settlements Twice as many with child support cases as without child support, but demographics Income determination now central issue More attempts to “impute” income… Default to mid-range on amount Generally consistent on duration Interprovincial differences re review orders Reviews vs long time limits? Exceptions still under-used

Mid is not “norm”, factors to consider: Strength of compensatory claim Recipient’s needs Age, number, needs of children Needs, ability to pay of payor Work incentives for payor Property division, debts Self-sufficiency incentives for recipient Good e.g.s: Reid v Carnduff (ONSC 2014); Mayer (ONSC 2013); Brown (NBQB 2013); Cochrane (BCSC 2013); Jardine (NSSC 2013); Hari (ONSC 2013); Bastarache (NBQB 2012); SD v JD (NBQB 2012)

15 ENTITLEMENT ANALYSIS Beyond threshold, identifying entitlement still important; compensatory vs non-compensatory Location in ranges Exceptions, variation issues Duration: end of entitlement Compensatory issues: “She was a secretary before, so no loss”… “She worked throughout the marriage, so no loss” … “He received no career advantage because she stayed home with the kids” … good compensatory analysis: Hartshorne (2010 BCCA), Abernethy v Peacock (ONSC 2013) Non-compensatory issues: “need” as a ceiling vs. marital standard of living in long marriages post-separation need?: Tscherner v. Farrell (ONSC 2014), Jubinville (BCSC 2013)

Divorce Act, s. 15.2(6)(a) and (b) Economic disadvantage/advantage, roles Markers: home with children full or part-time primary care of children after separation secondary earner moves for payor’s career support for payor’s education/training work in family business Implications: strong compensatory claim, higher in the range more likely to share post-separation income increases less impact of repartnering

Divorce Act, s. 15.2(6)(a), (c) Needs-based, “merger over time” Need relative to marital standard Markers: length of marriage/cohabitation drop in standard of living economic hardship All to assess “interdependence” Implications: assess usually on separation date incomes lower in range, but disability/extreme need often pushes higher more impact to repartnering

18 INTERIM SUPPORT Many reported decisions
SSAG often used, “ideal setting” But remember: exception for compelling financial circumstances in interim SSAG amount may be too high; eg payor responsible for debts, mortgage, etc: Fyfe v. Jouppien (ONSC 2011); Carrier v. Poon (NBQB 2013) SSAG may be too low, hardship, eg. short marriage, no kids: Singh (ONSC 2013) Complex incomes, lack of accuracy: choose a number, can correct at trial Include interim in calculating duration

19 Without Child Support Formula
One third of reported cases, except half in NB, NS Wide range of cases, mix of compensatory and non- compensatory entitlement short, medium, long, no kids long with grown children medium length, wcs at time of separation, cross-over when cs ends Exceptions more relevant in these cases Court cases within formula range for amount 60% ON to 70% BC (90% in NB) but many fall within exceptions (noted or not noted) unusual facts Duration often involves time-limits think about restructuring, lump sums indefinite with variation/review vs. long time-limits

20 WOCS: LONG MARRIAGES 20 yrs or more
Majority of without child support ct. cases Spousal support mixed with property issues, complex incomes Duration generally indefinite in initial orders, not even many reviews (except BC) Main issues on variation/review changing incomes, self-sufficiency repartnering, retirement

0-9 yrs (similar issues for custodial payor) Formula: low amount, short duration Most settle: interim enough, time limit, lump sum Few reported cases: atypical, formula result seems unfair (too low, too short) Remember relevant exceptions! Compensatory exception in short marriages Compelling financial circumstances in interim Hardship in short marriages Immigration sponsorship Good examples: RMS (BCCA 2011), Stergios v. Kim (ONCA 2011), Singh (ONSC 2013)

22 WOCS: Medium Length 10-19 yrs
medium length, no kids (non-compensatory) medium length with kids, cross-over to wocs when child support ends (compensatory & non-compensatory) Issue is duration: formula generates time-limits; how to implement? many indefinite to begin, then short time limits/termination imposed on variation/review: Domirti (BCCA 2010, cross- over, terminate16 yrs after 16 yr marriage) but some longer time limits in advance, Maher (NBQB ), Zimmaro (BCSC 2013) Most cases within ranges for duration: SSAG bringing structure to duration in medium length marriages high end of duration range in compensatory cases (cross- overs); lower end of duration range (half length of marriage) in many non-compensatory cases disability may be an exception, no time limit: Leblanc (NBCA 2013), Van Rythoven (2010 Ont.Div.Ct. 2010)

23 Cross-overs Remember, when child support ends, need to switch to without child formula for spousal support; retro calculations as well as on- going support Maher (NBQB 2012), Purgavie (ONSC 2012) Duration: may now be time limits Remember s.15.3 exception, inadequate compensation, priority to child support Beck v. Beckett (ONCA 2011), Abernethy v. Peacock (ONSC 2013)

24 Lump Sum SUPPORT Leading case on when to use: Davis v. Crawford (ONCA 2011) Lump sums based on SSAG, need time limits for duration; most often short, medium length marriages without children If converting periodic to lump sum remember to discount for tax Issue: additional 20% contingency discount in BC? Marsh (BCSC 2012), Walker v. Brown (BCSC 2013) In many cases, multiple purposes, no calculations

25 With Child Support Formula
Fewer “basic” formula cases, 45-55% more complex custody cases now shared custody, esp. in BC (30% of cases) custodial payor, esp. in Ont (20%) 90% fall within range for amount mid-range for 60% of outcomes Duration generally consistent with SSAG, except short marriages, young children More homogenous than without child cases

Problem of duration, not amount Compensatory claims: Young children, disproportionate care More future disadvantage, than past Judges, lawyers underestimate loss Do NOT tie duration to length of marriage Persistent pattern across provinces E.g. MacKenzie v Perestrelo (BCCA 2014) Age of children test more important Reviews rather than short time limits

27 SHARED CUSTODY Large income disparities common (!)
Most fix child support at set-off Spousal support used to adjust living standards Trend to equalise NDIs in Ontario, not BC E.g. Rankin (ONSC 2014); McMahon (BCSC 2012) BC most mid or low-end SSAG? Thompson (2013), 32 CanFLQ 315 Similar household living standards as guide Using child support, spousal support SSAG range always includes 50/50 NDI split In bi-nuclear cases, starting point… In complex families, can use Schedule II adjusted Duration can be important in these cases Reduced disadvantage going forward

Hybrid, i.e. at least 1 child shared Child support at set-off, spousal to adjust With child support formula, mostly mid-range Split custody Not equalise NDIs: Greig (ONSC 2014) Step-children: With child formula, often hybrid custody Trade-off vs child support, Stadig (ONSC 2013) If only step-child, length of marriage re duration

29 CUSTODIAL PAYOR More frequent: NB 23%, ON 20%, BC 10%
Leading case: Cassidy v McNeil (ONCA 2010) Compensatory vs non-compensatory? When? older children, disability, guys Papasodaro (ONSC 2014): formula “harsh”? But reflects cost of children, length of marriage Generous time limits, also indefinite Medium-to-long marriages Note: is child support being paid or not? Exceptions? disability, parenting?

30 EXCEPTIONS Used more frequently, but still missed: Read Chapter 12!
Most common? debt, interim, disability, hardship prior support, s. 15.3 Used more in without children cases Driven by entitlement analysis, also practical adjustments 11 exceptions in all, not exhaustive Unusual facts mean departures

31 EXCEPTIONS: NEW CASES Compelling financial circumstances at the interim stage (SSAG 12.1) Singh (ONSC 2013); Tasman v. Henderson (ONSC 2013); Fyfe v. Jouppien (ONSC 2011); Carrier v. Ponn (NBQB 2013) Debt payments (SSAG 12.2) Dunn (ONSC 2011); Goodine (NSSC 2013) Illness and disability (SSAG 12.4) Powell v. Levesque (BCCA 2014); Shen v. Tong (BCCA 2013); Leblanc (NBCA 2013); Van Rythoven (Ont.Div.Ct. 2010); Tscherner v. Farrell (ONSC 2014); Knapp (ONSC 2014) Prior support obligations (SSAG 12.3) Newcombe (ONSC 2014)

Compensatory exception in short marriages without children (SSAG 12.5) R.M.S. v. F.P.C.S. (BCCA 2011); Stergios v. Kim (ONCA 2011); Singh (ONSC 2013); Sidhu (ONSC 2014); Bhandal v. Mann (BCSC 2012) Basic needs/hardship (SSAG 12.7) Singh (ONSC 2013) Non-primary parent to fulfil parenting role (SSAG 12.9) R.M.S. v. F.P.C.S. (BCCA 2011); Kelly (BCCA 2011); Osanlo v. Onghaei (ONSC 2012) Special needs of child (SSAG 12.10) Jans (Alta.Prov.Ct. 2013); Metzger (ONSC 2011) Section 15.3: inadequate compensation (SSAG ) Beck v. Beckett (ONCA 2011); Abernethy v. Peacock (ONCJ 2012)

33 INCOMES ABOVE $350,000 NOT a “cap”, just “ceiling” on formulas
Discretion once beyond $350,000 ON, BC more likely to follow formula than MB, SK Incomes closer to $350,000: often low to mid formula range incomes up to $500,000 Incomes above $500,000: “pure discretion” Shorter marriages, more modest amounts Large child support: moderate spousal? Run various incomes, from $350,000 on up

34 VARIATION AND REVIEW To vary, proof of “material change” required
Review: court can make term of order, reconsider after date/event, if uncertainty SSAG formulas apply on variation, review But hard entitlement issues creep in… Post-separation income increase Remarriage/repartnering of recipient spouse Self-sufficiency of recipient Retirement of payor So greater discretion in use of SSAG

Entitlement issue: share all, some or none of increase Test: loose connection of increase to marriage: length of marriage roles during marriage (compensatory/non-comp) time elapsed since separation reason for increase together/support while education/training AB more demanding, less so ON, BC

Run alternative incomes, different sharing Most likely to be shared: with child support cases compensatory claims generally medium and longer marriages Delayed support claims: “SSAG don’t apply”: wrong E.g. Quackenbush (ONSC 2013) real issue incomes to be used, living standards Flip side: post-separation reduction of recipient’s income, e.g. job/pay loss

Issue of entitlement: its end Initial time limits: without child support, custodial payor formulas Time limits over time: both formulas Self-sufficiency: common reason Other reasons for ending entitlement: repartnering of recipient retirement

No formulaic adjustment No automatic termination Entitlement compensatory or non-compensatory? Support continues longer, bigger if former Alternatives to adjust: None (if compensatory, or partner low-income) Low end SSAG range Step-down order Below formula range Nominal support (in case) Termination/no entitlement Need for “more guidance”: Colley (ONSC Quinn J) See K.A.M. v P.K.M., 2010 BCSC 93

Relative concept, to marital standard No “deeming”, realism needed: Moge A factor, not determinative: Leskun Methods of encouraging: Impute income to recipient: most common Increase support: education/retraining Review, or another review Reduce support/step-down: need to earn more Terminating review order Time limit Dangers of double-counting e.g. impute and low end, or impute and step down

40 RETIREMENT OF PAYOR Retirement usually a “material change”
Early retirement: may not be “change” Reduced income, SSAG to reduce support Division of property/pension important Boston (SCC 2001): no double-dipping of divided pension but broad exception for need both spouses to use assets to generate income Entitlement often ends…

41 GUYS SEEKING SUPPORT SSAG formulas are gender-blind
Less bias: NB, ON, BC… E.g. Walker v Brown, 2013 BCSC 204 More cases Still unspoken “exception”? No entitlement, lower amount, shorter duration Higher expectations of self-sufficiency Firth v. Allerton (ONSC 2013): bad arguments, low and short!

42 SSAG SUCCESSES Shaping client expectations Framing negotiations
More settlements, less litigation Simplifying resolution of typical cases Smaller claims resolved, basic without child formula Access to justice, esp. unrepresented More structure for duration Calculating lump sums Isolating outlier decisions/patterns Gender neutrality Fewer “bad” agreements Establishing a standard for appellate review Providing structure for support analysis

43 SSAG PROBLEMS Skipping over entitlement
Defaulting to the mid-range on amount Duration too short where young children Failing to consider exceptions Unsophisticated use generally Attempts to impute income Seeking rules where SSAG leave discretion Defaulting to formulas for high incomes More frequent claims for retroactive support Unrepresented litigants: But now

44 GUIDELINES ELSEWHERE Local guidelines, mostly temporary
E.g. Santa Clara, Fairfax, Penn, Kansas American Law Institute (2002) Am. Ass’n of Mat. Lawyers (2007) Mass (2011), NY (2010, temporary,…) Other states UK Law Commission Report (February 2014) “Matrimonial Property, Needs, Agreements” recommends working group re formulas

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