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  • Length of spousal support

    When things go to court, is it possible/are there cases that a judge decides that the amount of spousal support and/or the length it is to be paid falls outside the guidelines?

    A bit of background... My stbx and I have been together since high school,14&16 yrs old, that was 20 yrs ago. We moved in together when we went to college, that was in '98, so that puts our "date of premarital cohabitation" at 2001. We got married in 2003, bought our current home at that time. Had a child in 2007. A few weeks ago she pretty much just called it quits. Nothing nasty, no ones ever cheated or anything like that, but simply put our relationship became stale many years ago and i guess she finally had enough and decided to call it, something I really should have done myself a loooong time ago but for various reasons I wouldn't/couldn't do it. Looking back I would say that would end up being the worst mistake I've ever made in my life, something I'm going to pay for dearly both financially and emotionally.

    Now so far things have been very civil, we both want to avoid lawyers and we've started going through mediation. Child custody is relatively easy, we're both good parents and it's a 50/50 split. All our "stuff" is split fairly. When it came to the house, she said she couldn't maintain the property and would move out. It was agreed that me keeping the house would lessen the impact on our daughter as well. Then came the support payments. Now she makes about 38% of my gross, but a large portion of her income comes from her home business, which is off the books. Thankfully we're both taking this into account in coming up with a future budget plan. So far basically I keep the house and buy her out, she moves into new house she’s looking at which we now might have to buy together and switch the names up when our agreement is finalized. (not ideal, but due to many circumstances it may be the best way right now) I keep new vehicle we just bought and remove her name off that, she buys new vehicle ( she was going to keep our second older car, but of course last week it got hit and now it's not really road worthy) I pay her child support as per table for shared custody, plus an agreed amount of spousal.

    So after all our “living” expenses (house, bills, vehicle) we end up with nearly identical “spending or take home money”, she gets a little more until my vehicle’s paid off, at that point I end up with a little more. (as I’m writing this I’m reading about Harper’s removal of the child tax benefit in 2015, which was budgeted for as income for her. This now removes ~10% of said spending money each if we offset that equally, thanks Harp!)

    Now as far as spousal support the amount we agreed upon (so far) ends up being ~80% of the low end of the calculated range. Anything over this the scales start tipping in her favor and opens up a whole new can of worms. (danger zone of not being able to afford the house etc...) Yes I am grateful for this.

    The one thing we didn’t touch on yet is the length of time of the spousal support payments. Honestly I’m really having a hard time digesting this one. I mean, yes I know I must dish it out, and I honestly don’t want her to fail nor have my daughter live in unfavorable conditions. But this for me is an open wound, I’d like to say I can move on one day and it’s driving me nuts thinking I have to keep paying for 6.5 to 13 years. (guideline time) Stbx is a smart, hard working 34yr old woman, not a 50yr old housewife who never had a job and getting thrust into the workforce. She should be able to get her life in order in way less time than that, and I’ll help her do it, but come on… So since we’re doing this ourselves my plan is to offer 3-5yrs, subject to review and circumstances like new live-in relationships (highly doubtful) etc… Honestly I feel anything over 5 years is milking it.

    I know it’s hard to comment on other peoples lives because you never truly know all the different facets & nuances, but I’d like to know if I’m being fair. Or should I just stfu and run with it since I may “get away” with the lower payments in the first place? Would the system ever decide on a length of time shorter than the shortest guideline time?

  • #2
    Hold your horses.

    -Has she made any sacrifices for the family (quit job, worked less etc...)?
    -If so, for how long?
    -She is currently working full-time?
    -How much do you make and she make?
    -How is your lifestyle right now?

    Also, don't be so sure she isn't cheating on you, just saying.

    The SSAG are still guidelines....

    Comment


    • #3
      - hard to explain, not counting mat leave the first 2-3 years of parenthood she kept 2 part times jobs mostly, say 30K/yr from then until last year she weened off one of them, drop in income to 20-25k the she started the business last year, she's sitting around 36K now. Working her part time 2 days/wk and running the business the other 2 days plus whenever she has time (shes trying to keep a 4 day work week like me)

      - At the time she started weening off the 1 job I started making more money, then I switched jobs in 2012, took a 10-20k hit but more time off - 4 day work week. I'm sitting at around 95K now

      - not sure whan you mean for lifestyle, I would describe it a comfortable. House we had to re-mortgage couple years ago due to some major renos. Had the 2 same vehicles from when we got maried until one got smashed last winter, purchased new vehiclew then. Bought a $15k rv 2 years ago, no other "toys" and besides the regular stuff we own in the house that's pretty much it. We're not hurting, but we're not lavish either...ex. First/last major trip we went on was our wedding 11 yrs ago....

      As far as cheating, I can say with near certainty that until 3 weeks ago when we called it off that it hasn't happened. Can't say that she hasn't since then, but I guess that's not relevent anyway now. Her whole group of friends have split up with their exes within the past couple years, 3 of them just this summer, and most of them have been dumped, screwed over or didnt see it coming. Obviously that made me nervous, with things being said to her like "dont worry you'll have more money now anyway if you go after what you deserve". But I gotta say she's been pretty good at not buying into most of that, she even said that one of them was getting way too much money and it wasn't fair...

      Comment


      • #4
        Going through a very similar situation.

        Currently have an 'in term agreement' . Ex agrees to one thing, something reasonable, then meets with her lawyer and it goes completely sideways. Of course, this takes months to go through.


        From what I understand, CS is most important. I guess a judge looks at this first, so one would pay the offset amount then figure out ss.

        SS...i think... according to #1 of the guidelines is...one's ability to pay. I.e. net incomes.

        I would think, as your ex is quite young and numerous courses are avail, on line, she would have to make some kind of effort to retrain.


        Mind, having had the 'pleasure' of numerous court appearances....., case conferences, motions etc. judges seem to be all over the map....i.e. I had one judge tell me Hockey isn't an S-7 expense.

        Comment


        • #5
          (as I’m writing this I’m reading about Harper’s removal of the child tax benefit in 2015, which was budgeted for as income for her. This now removes ~10% of said spending money each if we offset that equally, thanks Harp!)

          You need to read that article again. Harper is not scrapping CCTB, but the child tax credit, a non refundable tax credit. This has nothing to do with CCTB.

          Comment


          • #6
            Originally posted by blinkandimgone View Post
            You need to read that article again. Harper is not scrapping CCTB, but the child tax credit, a non refundable tax credit. This has nothing to do with CCTB.
            Yes you're right it seems, I thought it was the same thing...

            Comment


            • #7
              From what I gather, many people do. :-)

              Comment


              • #8
                Originally posted by failed@life View Post
                - hard to explain, not counting mat leave the first 2-3 years of parenthood she kept 2 part times jobs mostly, say 30K/yr from then until last year she weened off one of them, drop in income to 20-25k the she started the business last year, she's sitting around 36K now. Working her part time 2 days/wk and running the business the other 2 days plus whenever she has time (shes trying to keep a 4 day work week like me)
                Of all these changes what can she argue (or present as) that she did to support the family by being a homemaker?

                Originally posted by failed@life View Post
                - not sure whan you mean for lifestyle, I would describe it a comfortable. House we had to re-mortgage couple years ago due to some major renos. Had the 2 same vehicles from when we got maried until one got smashed last winter, purchased new vehiclew then. Bought a $15k rv 2 years ago, no other "toys" and besides the regular stuff we own in the house that's pretty much it. We're not hurting, but we're not lavish either...ex. First/last major trip we went on was our wedding 11 yrs ago...
                No major vacations = not a crazy lifestyle. That's important


                As far as cheating, I can say with near certainty that until 3 weeks ago when we called it off that it hasn't happened. Can't say that she hasn't since then, but I guess that's not relevent anyway now. Her whole group of friends have split up with their exes within the past couple years, 3 of them just this summer, and most of them have been dumped, screwed over or didnt see it coming. Obviously that made me nervous, with things being said to her like "dont worry you'll have more money now anyway if you go after what you deserve". But I gotta say she's been pretty good at not buying into most of that, she even said that one of them was getting way too much money and it wasn't fair...
                She won't have more money now. If she gets remarried maybe....
                Cheating isn't relevant - I just wanted you to consider its possible and you never found out and you may never find out but who cares at this point. Everybody is nice when they are getting what they want....

                _______________________

                So spousal support is based on 3 primary principles.
                1. Compensatory: any sacrifices the lower earner made for the family unit needs to be compensated.
                2. Non-compensatory: a lower earning spouse has the right to a transition or indefinite duration of maintaining a standard of living similar to the standard of living during family life. Even if she didn't sacrifice anything she has the RIGHT to it..
                3. Contractual: Anything you agreed upon

                ________________________

                From what you've said - its actually #2 where her claim lies and its tenuous because at 36k (you need to get that admitted in writing or double check that figure) + child support she is still going to have a decent standard of living relative to what you have now..

                You should not be following the guidelines for your case (in my opinion).

                Also, since you are sharing custody of the children there is no future claim for compensatory spousal support






                Obviously I am a troll on the internet so get a pro - here are some citations:


                (ii) …claims clearly go beyond illness and disability and total incapacity to earn income because of age and lack of skills to include any significant drop in standard of living post marriage breakdown due to loss of access to other spouse’s income. For cases of childless marriages where both parties worked but wife lower earner where non-compensatory claims recognized see Hoxford v. Hoxford, reflex, [1999] O.J. No. 2794 [11]and Curic v. Curic, reflex, [1999] O.J. No. 2450
                [12](But note, claims on this basis may give rise only to transitional rather than permanent support.)


                CanLII - 2001 CanLII 28191 (ON SC)

                Comment


                • #9
                  Originally posted by failed@life View Post
                  - hard to explain, not counting mat leave the first 2-3 years of parenthood she kept 2 part times jobs mostly, say 30K/yr from then until last year she weened off one of them, drop in income to 20-25k the she started the business last year, she's sitting around 36K now. Working her part time 2 days/wk and running the business the other 2 days plus whenever she has time (shes trying to keep a 4 day work week like me)
                  Of all these changes what can she argue (or present as) that she did to support the family by being a homemaker?

                  Originally posted by failed@life View Post
                  - not sure whan you mean for lifestyle, I would describe it a comfortable. House we had to re-mortgage couple years ago due to some major renos. Had the 2 same vehicles from when we got maried until one got smashed last winter, purchased new vehiclew then. Bought a $15k rv 2 years ago, no other "toys" and besides the regular stuff we own in the house that's pretty much it. We're not hurting, but we're not lavish either...ex. First/last major trip we went on was our wedding 11 yrs ago...
                  No major vacations = not a crazy lifestyle. That's important


                  As far as cheating, I can say with near certainty that until 3 weeks ago when we called it off that it hasn't happened. Can't say that she hasn't since then, but I guess that's not relevent anyway now. Her whole group of friends have split up with their exes within the past couple years, 3 of them just this summer, and most of them have been dumped, screwed over or didnt see it coming. Obviously that made me nervous, with things being said to her like "dont worry you'll have more money now anyway if you go after what you deserve". But I gotta say she's been pretty good at not buying into most of that, she even said that one of them was getting way too much money and it wasn't fair...
                  She won't have more money now. If she gets remarried maybe....
                  Cheating isn't relevant - I just wanted you to consider its possible and you never found out and you may never find out but who cares at this point. Everybody is nice when they are getting what they want....

                  _______________________

                  So spousal support is based on 3 primary principles.
                  1. Compensatory: any sacrifices the lower earner made for the family unit needs to be compensated.
                  2. Non-compensatory: a lower earning spouse has the right to a transition or indefinite duration of maintaining a standard of living similar to the standard of living during family life. Even if she didn't sacrifice anything she has the RIGHT to it..
                  3. Contractual: Anything you agreed upon

                  ________________________

                  From what you've said - its actually #2 where her claim lies and its tenuous because at 36k (you need to get that admitted in writing or double check that figure) + child support she is still going to have a decent standard of living relative to what you have now..

                  You should not be following the guidelines for your case (in my opinion).

                  Also, since you are sharing custody of the children there is no future claim for compensatory spousal support

                  _____________

                  Since she is already self-sufficient you can argue for a properly adjusted lump sum given your job/career is stable or time limited order as a transition.



                  ____________




                  Obviously I am a troll on the internet so get a pro - here are some citations:


                  (ii) …claims clearly go beyond illness and disability and total incapacity to earn income because of age and lack of skills to include any significant drop in standard of living post marriage breakdown due to loss of access to other spouse’s income. For cases of childless marriages where both parties worked but wife lower earner where non-compensatory claims recognized see Hoxford v. Hoxford, reflex, [1999] O.J. No. 2794 [11]and Curic v. Curic, reflex, [1999] O.J. No. 2450
                  [12](But note, claims on this basis may give rise only to transitional rather than permanent support.)


                  CanLII - 2001 CanLII 28191 (ON SC)

                  Comment


                  • #10
                    Originally posted by Links17 View Post
                    Of all these changes what can she argue (or present as) that she did to support the family by being a homemaker?
                    Again hard to say, she can maybe claim that because of the timing of having a child, but again the first 2-3 years it wasn't an issue, only for a couple years after that. This was because I was earning more than ever before at that time, she didn't need to work as much to maintain that combined income. The year I switched jobs we took a hit and felt it, that's when she started the business to bring up our household income. The original part time job she had lost by then since she didn't pick up enough shifts.

                    Forgot to mention I was planning on keeping her on my workplace medical plan as part of the deal, prob doesn't affect anything but it shows good faith no?...

                    The other thing is if we're forced to lawyer up because of this one aspect we may not agree on, things will probably get ugly and the legal costs might end up equaling a few years worth of spousal anyway, not worth it I'd imagine...

                    Comment


                    • #11
                      Originally posted by failed@life View Post
                      ...I was earning more than ever before at that time, she didn't need to work as much to maintain that combined income. The year I switched jobs we took a hit and felt it, that's when she started the business to bring up our household income...
                      It is a good thing that you recognized that the two of you contributed to the family, not just the higher income earner. The economics of your marriage was one that was agreed upon by both of you. During happy times you both did what you had to do to maintain your lifestyle. Everyone benefited.

                      So now that you are parting ways you have put the emotional part aside and look at your marriage objectively. Spousal support is different from Child Support. Spousal support is typically negotiated after CS is determined and often after equalization is calculated. Some people opt, or have to, agree to an unequal distribution of marital assets in lieu of or combination of spousal support. Every SS case is judged indivdually.

                      A notable difference between Child Support and Spousal Support is that there are guidelines for SS but it is not uncommon for a judge to deviate from the guidelines whereas CS has strictly adhered to guidelines as 'child support is the right of the child.'

                      I see you and your wife are already discussing equalization of assets/liabilities. You are leaps and bounds ahead if you can come to a civil agreement on this matter.

                      When a Spousal Support matter goes to court often the judge will look for a consensus which the couple had prior and during the marriage. Long range plans the couple once had can often come into play. For example, if it was agreed to that one person would stay home for primary child and homecare activities then this consensus is taken into consideration when determining duration of SS. The age of your wife when the two of you were married is a factor as is her age at time of separation. Your wife's highest level of formal education is noted. As your wife showed business aptitude and successfully operated a small business out of the home then that will be noted. Was the business income declared on tax returns?

                      Achieving self-sufficiency is important. Now comes the interesting part. A judge would look at the combined income and the standard of living enjoyed by the two of you throughout the marriage. This standard of living was achieved by a combination of your incomes. If your wife agrees with this then it will likely become a fairly straight-forward mathematical calculation. However, if your wife does not agree with this and instead insists that she sold teabags and eye-brow pluckers to make spending money and did not include this on her income tax return, then you will likely have to concede that her income equated that of baby-sitting on the side.

                      Facts and evidence of income is quite important in family court matters. Your wife is young and could realistically retrain/go to school over time and be quite self-sustaining. What will be determined is how much time and money will it cost for her to become fully self-sufficient. Now the difficulty comes into play.

                      Probably one of the best things to do, in my opinion, is look at a realistic span of time that your wife could retrain and become self-sufficient. If you have young children then it's not realistic that she could go to university full-time, particularly if this was not a long-term plan of hers in the first place. I would recommend that you consider a phasing out period of paying SS. First year - XX, Second year - xx, with a specific end date. You could opt to pay more and shorten the number of years.

                      Next you have to do some reading on "material change of circumstances" because that is the granddaddy of all clauses to end all clauses that will keep your ex coming back for continuous adjustments in Spousal Support. It is for that reason that I think you should try to pay as much as possible up front in a cash settlement with tapering off spousal support over a 5 year period? Your argument is that she is young and it is realistic that she can be self-sufficient within that period of time.

                      Material change of circumstance could be illness or you losing your income, to name just a few.

                      Comment


                      • #12
                        Sound advice, thanks everyone...

                        As for her business, she started that pretty much a year ago. Didn't file for taxes last year, until now she wasn't planning on doing it this year either. (I do have copies of her books though) Our mediator suggested she file from now on to make sure everything is out in the open. I think that will only hinder me, if she files then her take home we calculated will drop out of her comfort zone and I'll have to offset that, pushing my limits in our current plan.

                        Comment


                        • #13
                          It will be important for you in the long run that she file her taxes as it goes to prove she is capable of earning income. How/when she pays her taxes will become of no importance/relevance to you once you are both living on your own. She will have to realize that spousal support is 100% taxable to her and 100% tax deductible to you. An astute attorney would negotiate her SS with that in mind. In my case it was the judge who brought up the tax position.

                          Something else that she should realize is that spousal support IS NOT earned income for income tax purposes (yes it has it's own little column on the tax return) and this will effect her CPP contributions. Just another reason, among many, why SS isn't the greatest for long term sustainability and certainly isn't a 'road to riches' for many of us who are recipients of SS.
                          Last edited by arabian; 11-02-2014, 05:41 PM.

                          Comment


                          • #14
                            Originally posted by failed@life View Post
                            Forgot to mention I was planning on keeping her on my workplace medical plan as part of the deal, prob doesn't affect anything but it shows good faith no?...
                            Ask your employer to be sure this is possible. Many health insurance companies or employer policies require you to notify them upon legal separation/divorce in order to terminate your spouse's entitlement to insurance. Mine did.

                            Originally posted by failed@life View Post
                            The other thing is if we're forced to lawyer up because of this one aspect we may not agree on, things will probably get ugly and the legal costs might end up equaling a few years worth of spousal anyway, not worth it I'd imagine...
                            In order to make your agreement bullet proof, you will both need to get independent legal advice before signing off. When that happens, invariably her lawyer will say that she could do much better, particularly when it comes to spousal support. Don't be surprised and be prepared to compromise so that you can get the deal done (=reduce legal fees). If things come to an impasse, an experienced mediator might help keep contain legal fees.

                            I agree with Arabian- a lump sum is probably in your best interest if you can manage it.
                            I am at the point now where I am trying to reduce and phase out spousal support, 3.5 years after separating. It is no picnic when an ex decides to make no effort to retrain or seek employment. It appears in my case that the court is going to reward my ex for my her inactivity and her bag of tricks. Stay away from having to revisit this in two or three years if you can. My recommendation: if you cannot manage a lump sum payment, insist on a termination date and, as a Arabian said, a step down phasing out of spousal support over a reasonable number of years.

                            Comment


                            • #15
                              Interesting case to lookup:
                              For an example where support was terminated at a point far short of the high end of the durational range because the wife was found to have become self-sufficient see Mills v. Elgin, [2009] B.C.J. No. 2310, 2009 BCSC 1607 (15 year relationship with 3 children; spousal support terminated on variation application six years after separation when husband earning $100,000 and wife earning $46,000).
                              (this is from SSAG)

                              Also, if you offer a lump sum, you need to take into account the possibilities she remarries, you lose your job, tax benefits, risk etc...

                              At 30 something, and she has an income - she might be marriage material (you know better than me) which would be grounds to terminate.

                              Comment

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