Question of Entitlement & Judge's Discretion

[Ontario_Dad_41162]

Long and the short of it is that my ex is requesting spousal. I've taken a look at the SSAG and more than enough cases and I don't think that she would have a strong case for entitlement based on compensatory or non-compensatory reasons. She makes > $60k and I have the kids. The guidelines say that self-sufficiency is the goal and I think that she is. Now, during the Settlement Conference, the judge said that not only might he lean towards spousal, but it would of the indefinite nature. I asked why and he said simply because of the lenght of the marriage. I responded to him that I still didn't understand, that in my mind our marriage of 14 years was not long term and that the SSAG says that a long term is 20+ or if the rule of 65 applies. His only comment was that the closer that a marriage gets to 20, the more it could be "considered" to be a long term marriage.

My question is kind of two fold. First of all, would what the judge be implying be correct that there is discretion in matters like this? I understand that the SSAG are only guidelines and they're not law, but from all of the cases that I've read, they clearly seem to be treated almost like law.

Secondly, I'm wondering if there is also the possibility that by saying this, perhaps the judge was just trying to facilitate a settlement. In other words, if he can poke little holes in my case and in hers (which he did), maybe he figures that this would soften up our positions a bit which might lead to a settlement.

Any thoughts?

[billm]

Indefinite support for a 14 year marriage? That is insane.

How much do you make? Does she pay CS?

[Ontario_Dad_41162]

Indefinite support for a 14 year marriage? That is insane.

How much do you make? Does she pay CS?

I agree That's why I was just shocked by the judge's statement. I have a hard time believing that is what would be ordered. I make $85k, so more than her, but not drastically so. Does she pay child support? Well...yes...to a degree...since the kids have been here with me fulltime, she has deducted what she thinks she's entitled to for spousal from the child support. In her mind, she is paying full child support, in my mind she isn't and that's how I started this whole thing...telling her she doesn't have the right to deduct.

[NBDad]

Nope, she doesn't have the right to deduct. And given she makes 60K to your 85....she's already well over the 40-46% guideline. As such she shouldn't have any claim to spousal. Do you have an interim order for CS?

File it with the FRO and let them deal with her. She won't be able to deduct anything from them.

[Ontario_Dad_41162]

Of course she doesn't have the right, but there hasn't been a judge yet that has been willing to issue a court order to get her to stop and seeing that we're so close to the end, I can live with that part of now. I can't file anything with the FRO because there is no court order as of yet, so that's out of the question. In terms of your comment about her being within the 40-46% are you referring to the SSAG NDI guidelines? If so, then she's probably well below that given the fact that she has this CS to be paying. I just don't see that she has a valid compensatory or non-compensatory claim. My original email was to ascertain how much leeway does a judge have to say "okay - maybe she doesn't meet those criteria, but because you were married for 14 years, she's entitled" sort of thing?

[NBDad]

In terms of your comment about her being within the 40-46% are you referring to the SSAG NDI guidelines

Yep. She's ~ 10-15% under with CS paid/received...ballparking CS at ~ 1000/month.

Perhaps you could give her a reasonable offer to settle, slap and actual END DATE on the spousal and call it a day. A monthly spousal support payment is tax deductible for you. So you get a bit of a tax break with it, figure out how it affects you and find something you can live with.

[Toutou]

notonal cs

when determining %, do not forget that you should take notional CS out of your income too.

Here you can find a lot of information regarding SSAG:
http://www.law.utoronto.ca/faculty_content.asp?profile=48&perpage=188&cType=f acMembers&itemPath=1/3/4/0/0<?xml:namespace prefix = o ns = "urn:schemas-microsoft-comfficeffice" /><o></o>

[Ontario_Dad_41162]

Well, currently the CS is $932 a month, but my son is almost to the age where he won't require CS, so it'll be down to $472. I'm trying not to get too caught up in this though - the actual calculation. Was more interested in HOW a judge decides if someone is due spousal support - to determine how much discretion he has if it "feels to him" like she's entitled as opposed to her meeting the criteria of the guidelines.

Thanks to all that have responded.

[Mess]

In my limited experience, you are absolutely correct that the judge would try to coax you two to a middle position to keep you out of trial. I don't think that "indefinate" support is warrented in your situation and certainly not a slam dunk.

The thing about the SSAG is that they are based on existing court decisions, and even without the guidelines, judges would look to existing decisions to base their own judgements on. Case law is as powerful as legislation, in some cases more.

The discretion part is where you have to make a compelling, well-written, logical and supported argument to support your position. It all will depend on this. At a case conference the judge is reviewing the simplified notes, not the whole case.

You certainly seem to have the basis for making a case, but no one can promise you.

And of course compare what you will pay in spousal to what you pay a lawyer for a full trial.

[Ontario_Dad_41162]

In my limited experience, you are absolutely correct that the judge would try to coax you two to a middle position to keep you out of trial. I don't think that "indefinate" support is warrented in your situation and certainly not a slam dunk.

Thanks for the response. It's not so much that I'm expecting to go to trial. It's my hope that we can negotiate a settlement. My rationale for this post is that I wanted to have an inkling as to how strong was the likelyhood that indefinite would be ordered. If it was more of a casual comment by the judge, and doesn't preclude a time limited award, then this is important for me to know as it impacts how far I am willing to negotiate.

The thing about the SSAG is that they are based on existing court decisions, and even without the guidelines, judges would look to existing decisions to base their own judgements on. Case law is as powerful as legislation, in some cases more.

Interesting view - thanks

The discretion part is where you have to make a compelling, well-written, logical and supported argument to support your position. It all will depend on this. At a case conference the judge is reviewing the simplified notes, not the whole case.

You certainly seem to have the basis for making a case, but no one can promise you.

And of course compare what you will pay in spousal to what you pay a lawyer for a full trial.

See - this is the other thing. Neither of us are represented. She had gone with a lawyer but then she has fired the lawyer. I've been doing it myself since the beginning. My bottom line is that if she continues insisting on indefinite, then there's really no reason for me to accept an offer, unless there's something really major being traded off against it. Seeing that I don't have to worry about legal fees, I'm not too busted about the thought of going to trila. All that having been said, I would very much like to see this over with, it's all getting just more than a bit old and I have other things in life that need my attention.