Six years after the release of the final version of the spousal support advisory guidelines and the Ontario Court of Appeal’s decision in Fisher v. Fisher on them, we have another ruling clarifying their use in the context of support reviews.
In a nutshell, the appeal court has now endorsed the use of the guidelines in support reviews. The decision contrasts with the courts’ previous reticence to apply the guidelines in the context of a review.
In Gray v. Gray, the parties had been together for approximately 15 years. During the marriage, Kathleen Gray had worked as a part-time flight attendant for a number of years while her husband had worked on a full-time basis. The couple had four children arising out of their marriage and, following the separation, she retained primary care for them. At the time of separation (or shortly thereafter), she was on a disability pension as well as private disability benefits due to health issues. Her income was approximately $30,000 per year while James Gray was earning more than $100,000 per year.
In a 1998 divorce judgment, Kathleen was to receive approximately $2,300 per month in child support (including s. 7 expenses) and $800 per month in spousal support. The reasons for judgment
indicated the level of spousal support was lower than it otherwise would be due to the high amount of child support she was to receive. The court adjusted child support a few times thereafter to address matters such as arrears. Ultimately, as the children got older and the child support obligation clearly lessened, Kathleen brought a motion to change that led to this appeal. The motion proceeded as a trial.
The motion judge found child support ought to have decreased over the years and James had overpaid. Given the reduction in child support, Kathleen took the position that her spousal support, on both a compensatory and needs basis, ought to have increased over time as child support declined. As a result of the motion hearing, the court dismissed her claim and ordered the 1998 level of spousal support to continue based purely on a finding of needs. She appealed, arguing that in all of the circumstances, simply continuing with $800 per month in support wasn’t appropriate and the findings had resulted from a misapprehension of the facts as well as errors in principle.
Speaking for a unanimous appeal court panel, Justice Peter Lauwers noted, and rightly so, that the 1998 order for spousal support didn’t address Kathleen’s actual need at that time. As the court had clearly stated in the original reasons, the level of spousal support was lower than she should have received based on her need due to the high level of child support. Additionally, Lauwers held that the trial judge’s failure to consider the guideline ranges in making the current, ongoing determination of spousal support was an error. He found that despite previous findings, including in Fisher (which notably wasn’t a variation proceeding), the guidelines can and should apply to variation proceedings.
The guidelines include provisions that discuss their applicability to certain variation proceedings such as a move from the with-child to the without-child support formula and increases and decreases in parties’ incomes. They do, however, limit their applicability to situations such as those that involve second families and second support obligations. My reading of this case and the reasons given by Lauwers lead me to believe the Court of Appeal has extended the reach of the guidelines even further. It appears that not only can we use the guidelines in variations that deal simply with income fluctuations but we can now also use them in situations such as changes resulting from obligations to second families. In this regard, Lauwers concluded the court tasked with the review should first make a determination of whether consideration of the guidelines in these other, more complex situations is appropriate based on the facts. If the answer is affirmative, the court should proceed to consider the guidelines.
This has been an ongoing debate in the lower courts since the guidelines came out in their final form in 2008. Initially, we worked on the basis that the guidelines simply didn’t apply. Slowly, some lower courts found rationales to rely on the guidelines while others ruled otherwise. Finally, we seem to have some clarity on the issue.
Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at email@example.com.