Calculating Spousal Support

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If you and your former spouse or partner are unable to agree on spousal support and proceed to court, a judge will refer to the Spousal Support Advisory Guidelines as a starting point for amount and duration of support. Rather than generating a definitive number, the Guideline formulas provide support ranges for both the amount and duration based on the length of marriage and/or cohabitation period. For married spouses, the formula considers the entire cohabitation period, including any time the parties lived together before marriage.

There are two basic formulas used to calculate spousal support: the Without Child Support formula and the With Child Support formula, depending on whether the payor will be paying spousal support in addition to child support. Several software programs are available to perform the complex calculations associated with spousal support; it is best to consult an Ontario family law lawyer for an accurate interpretation of your rights and obligations.

Without Child Support Formula

The formula for calculating spousal support where no child support obligation exists relies quite heavily upon the length of the relationship. This means that the amount of support and duration increases with the length of the relationship to a maximum for marriages 25 years or longer. The amount of support ranges from 1.5 to 2 per cent of the difference between the spouses’ gross income amounts for each year of marriage or cohabitation, up to a maximum of 50 percent, (where 50 percent represents an equalization in income).

Support duration ranges from half to one year for each year of marriage (or cohabitation), with duration becoming indefinite after 20 years of marriage. Since one of the factors in determining a spousal support entitlement is age, the guidelines also calculate indefinite support if the marriage has lasted 5 years or longer and the years married added to the support recipient’s age at separation total 65 or more. This reflects the diminished earning capacity of separating parties reaching retirement age.

Without Child Support Example

A husband and wife separated January 1, 2013 after 23 years of marriage. Husband at the time of separation is 48 years old and Wife is 43 years old. In 2012, Husband earned $85,000.00 and Wife earned $35,000.00.

The Spousal Support Advisory Guidelines suggest the following payment from Husband to Wife:

  • Low range: $1438.00 – Midpoint: $1677.00 – High range: $1917.00

With Child Formula

This formula places emphasis on children’s rights to financial security over the spouse’s in that child support obligations are calculated first, followed by spousal support. For post-separation families with limited means, spousal support amounts may be significantly diminished. The with child formula used to calculate spousal support is based on the Individual Net Disposable Income (INDI) for both parties.

  • For the payor, this is amount is: The Guidelines Income amount – child support – taxes and deductions + government benefits and credits.
  • For the recipient, this amount is: Guidelines Income amount – notional child support – taxes and deductions + government benefits and credits.

Once the INDI amounts have been calculated, they are added together and spousal support is transferred incrementally until the lower-income spouse achieves between 40 and 46 percent of the total INDI. This calculation can only be performed using specialized software; an example is provided below.

Notional Child Support: the estimated amount of child support that a custodial parent is presumed to spend on the children in his or her care.

Like the support amount, support duration is also quite variable. Factors impacting duration include the length of marriage, the time remaining until the youngest child of the marriage completes high school, and the age of the recipient (particularly those nearing retirement).

Support duration for interim or initial spousal support orders is indefinite, subject to variation and review. On a review and variation, the formula applied is:

For lower-end spousal support ranges duration is the longer of:

  • One half the number of years of marriage/cohabitation; and
  • Number of years until youngest child starts full-time school.

For upper-end spousal support ranges duration is the longer of:

  • Number of years of marriage/cohabitation; and
  • Number of years until youngest child finishes high school.

The Length of Marriage Test is generally used to calculate support duration for longer marriages:

  • For medium and longer marriages of 10 years or more duration is half to one year of support for every year of marriage/cohabitation.
  • For marriage/cohabitation periods of more than 20 years, or where the marriage is longer than 5 years and the age of the recipient plus the years of marriage is 65 years or more, (“Rule of 65”), support duration will be indefinite.

The Age of Children Test is generally used to calculate duration for shorter marriages of less than 10 years:

  • At the lower end, it is the number of years until the youngest child starts full time school.
  • At the upper end, it is the number of years until the youngest child finishes high school.

With Child Support Example

A husband and wife separated January 1, 2013 after 23 years of marriage, and there are 2 children of the marriage, aged 12 and 10 residing with Wife. Husband at the time of separation is 48 years old and Wife is 43 years old. In 2012, Husband earned $85,000.00 and Wife earned $35,000.00.

The Spousal Support Advisory Guidelines suggest the following payment from Husband to Wife:

  • Child Support: $1232.00.
  • Spousal Support: Low range: $0.00 – Midpoint: $282.00 – High range: $697.00.

Shared Custody

Shared Custody refers to an arrangement where each party has parenting time with the children at least 40 percent of the time. This parenting arrangement requires an adjustment to the basic “with child” support formula. It is important to note that shared custody parenting arrangements do not automatically lower the amount of spousal support; however, amounts may need to be adjusted to reflect an appropriate spousal support amount.

Given the complexity of the calculation involved and the variability of adjusted set off amounts, a software program is required to perform this calculation.

Split Custody

In split custody situations, both parents have sole custody of one or more children. For example, daughters of the marriage may live with their Mother, while sons of the marriage reside with their Father. The formula for spousal support in split custody situations requires a notional table amount deduction from each parent; both the recipient and payor. The reasoning behind this modification is that in split custody situations both parents spend a larger proportion of their income on child support, which leaves less INDI available for spousal support purposes.

Custodial Payor

In some cases, child support and spousal support flow in opposite directions. This results in the custodial parent paying spousal support, requiring a different formula to reflect the circumstances.

Special Rules For High & Low Income Earners

The guidelines provide that where the payor has a gross annual income of more than $350,000.00, the formulas should not be applied automatically because they tend to produce unequal results. This “ceiling” is not a cap on spousal support, however, spousal support can and often will increase for income above this particular threshold. Ultimately, courts have the power to exercise discretion in fixing the amount of spousal support in high net worth cases. Similarly, the guidelines provide that where the payor has a gross annual income of $20,000 or less, typically no spousal support is payable.

For more information on spousal support calculations in Ontario, call (905) 581-7222. Feldstein Family Law Group P.C. can provide the answers you need.

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