Presentation is loading. Please wait.

Presentation is loading. Please wait.

Carol Rogerson July 15, 2014 Rollie Thompson.  History  How the SSAG were created, current status  Appeal decisions  Current SSAG issues  SSAG successes,

Similar presentations


Presentation on theme: "Carol Rogerson July 15, 2014 Rollie Thompson.  History  How the SSAG were created, current status  Appeal decisions  Current SSAG issues  SSAG successes,"— Presentation transcript:

1 Carol Rogerson July 15, 2014 Rollie Thompson

2  History  How the SSAG were created, current status  Appeal decisions  Current SSAG issues  SSAG successes, problems  Spousal guidelines internationally  Materials: ◦ Appeal Decisions 2010-14 ◦ “Canada’s Experiment” 2011 FLQ article ◦ “Ideas of Spousal Support Entitlement”

3 (1) Early Research (2001-2002) (2) Background Paper (December 2002) (3) Sneak Preview (July 2004) Draft Proposal (January 2005) (4) Draft Proposal (January 2005) Immediate use, software available Appeal Court Decisions: (5) Appeal Court Decisions: BCCA August 2005, NBCA April 2006, ONCA January 2008 (6) Detailed Feedback in 2006-08 Final Version (July 2008) (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  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  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

6  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

7  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: library.law.utoronto.ca/spousal-support- advisory-guidelines

8  Final Version (2008) still applies  Monitoring: no major changes since 2008  Software adjusts for tax, benefit changes  NewUser’s Guide  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  BC, NB, ON, PEI  BC, NB, ON, PEI: appellate endorsement  NL, SK, MB  NL, SK, MB: extensive use at trial  NS AB  NS, AB: wide,erratic use, appellate confusion  QC  QC: just beginning, 2011 QCCA decision  180+ CA decisions  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  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  No SCC decision: leave denied 7 times

10  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 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

12  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

13  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

14 Mid is not “norm”, 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  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)

16  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

17  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  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  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  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

21  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  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 2012), 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  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  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  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

26  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  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

28  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  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  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  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)

32  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 12.11) ◦ Beck v. Beckett (ONCA 2011); Abernethy v. Peacock (ONCJ 2012)

33  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  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

35  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

36  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

37  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

38  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

39  Relative concept, to marital standard  No “deeming”, realism needed: Moge  A factor, not determinative: Leskun  Methods of encouraging: most common ◦ 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 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  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  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  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 MySupportCalculator.ca

44  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


Download ppt "Carol Rogerson July 15, 2014 Rollie Thompson.  History  How the SSAG were created, current status  Appeal decisions  Current SSAG issues  SSAG successes,"

Similar presentations


Ads by Google