Spousal Support Advisory Guidelines, no longer optional in Alberta?
Since 2001, the Department of Justice created the Spousal Support Advisory Guidelines (“SSAGs”) to assist in determining the appropriate amount of spousal support in a relationship breakdown. Unlike the Federal Child Support Guidelines, the SSAGs contained the word advisory and did not have the same binding requirements as the Federal Child Support Guidelines. As, the SSAGs are advisory, following their guidance was not seen as mandatory across Canada. Rather, they provided insight for the Courts when reviewing the amount and duration for spousal support.
Since coming into effect, various provinces have no longer viewed the SSAGs as optional and have required the Courts to consider their Application when spousal support is raised as an issue. Some jurisdictions have determined it to be an error on appeal if the lower Court did not follow the SSAGs, or at least explain why they were deviating from it. Up until recently, Alberta was not one of those provinces. In Alberta there was no requirement for the Court to consider the SSAGs when determining the amount and duration of spousal support. This notion has now changed.
In the 2019 decision of Wild v Wild 2019 ABCA 159, this issue was raised before the Alberta Court of Appeal. Previous authority from the Court had noted the SSAGs as “a useful tool” although had preserved Trial Judge’s discretion. In the Wild case the Court notes that:
“…where practicable, we would encourage counsel to provide the Guidelines calculations to the Court in addition to the quantum of spousal support sought.” (para 9)
“Regardless, to be clear, a Court may use the Guidelines and related calculations as a starting point for the Court’s analysis or, alternatively, as a check on the amount calculated by the Court as appropriate. The point is that, in applying the statutory test under s 15.2(4) of the Divorce Act, the Guidelines may properly be considered by the Court at any point in the Court’s analysis and taken into account as considered appropriate.” (para 11)
“Further, where calculations under the Guidelines are provided to the Court, and the Court fails to refer to them or explain why the award falls outside the range under the Guidelines, that may well inform the scope of appellate review: Redpath v. Redpath, 2006 BCCA 338 (B.C. C.A.) at para 42, (2006), 228 B.C.A.C. 272 (B.C. C.A.) .” (para 12)
Based upon the Courts comments, it appears that they will now consider it as a possible error should the Court not properly consider SSAG calculations. Additionally, the Court has put the onus on parties to submit calculations as part of their Applications for spousal support. Whether this changes substantively the amount and duration of spousal support in Alberta has yet to be seen. Many Justices prior to this decision still applied the SSAGs when determining spousal support.
Whether you are seeking spousal support, or expect to be the payor of spousal support, Soby Boyden Lenz LLP can assist you in not only calculating the possible obligations under the SSAGs but also address questions of entitlement and any other issues resulting from a relationship breakdown.