SS Guidelines, entitlement and recent job loss

[JonS]

I've been reading a lot on this forum about spousal support and can't seem to understand one key aspect when it comes to income disparity and spousal support.



I've come to understand that entitlement for SS is factored in three ways: compensatory, non-compensatory and contractual. My situation isn't affected by contractual obligations, but I think the other two will affect the outcome.


I know income disparity alone doesn't constitute entitlement, unless its a significant amount.



When determining compensatory and non-compensatory SS, will the law/court take into account only the previous year income or is it more nuanced than that and include longer history? I am asking, because in my example, one partner had a higher earning income for most of the marriage until the last year--which even resulted in job loss and a non-working partner. Marriage lasted 6 years.



If arguing for entitlement using just the last year, wouldn't there be a situation where all of the sudden the person earning the lower wage becomes the sole earner and thereby creating a "significant disparity in income" with no change at all to their career situation?



If I made 70k and partner made 12k in last year due to job loss (they made 80-85k all previous years) does that mean our gross income (for potential use with the SS Guideline) is 82k with me earning 85% of it in the last year?



Any other year it would have been gross combined income of ~155k, with me earning 45% of it.


Bottom line, I am trying to understand what "significant disparity" means and if history longer than one year is used to determine it.

[tilt]

It’s really hard to get accurate advice on SS because judges do really look at each case individually. It isn’t really looked at for relationships (Cohab+ Marriage) of less than five years. So a six year marriage (assuming you didn’t live together before marriage) is very borderline. Also, why the person is no longer employed is relevant - why they lost their job and why haven’t they found another one. If the person is disabled (including mental illness) they might convince a judge to award them something, if it was a mutual decision to sacrifice the career for childcare, well that gets them SS. If they quit their job to sell sea shells, they probably are shit outta luck. Plus, SS is looked at as a whole package, including equalisation payment and excluded property.

So, that was really a non-answer, sorry. Judges want ex-partners to be independent and “walk away” on pretty equal footing. So the current employment situation is VERY relevant, but the past employment history shows the person was previously able to support themselves independently.

[JonS]

So, that was really a non-answer, sorry. Judges want ex-partners to be independent and “walk away” on pretty equal footing. So the current employment situation is VERY relevant, but the past employment history shows the person was previously able to support themselves independently.

I understand if its a case by case thing--so no worries, I appreciate the time and information. I value any clarity at this time.



The job loss was due to some side effects of a medication, which they're no longer taking. They are recovering from the situation and appear to be getting better.



I'm intrigued by one thing you did mention, though. If the person is capable of working but is choosing not to (i.e "selling sea shells by the sea shore"), then entitlement is not likely? Is there precedent for this in cases? Is there a particular term for this in legal cases that I could use to search similar cases? For example, "intentional unemployment" or "leisure unemployment"--I am totally making these up, by the way...I am just trying to make "sell sea shells by the sea" a little more formal for search purposes.



Am I to understand that "context" of the current employment situation (even if factually the incomes have a large disparity at the moment) is going to be looked at and play a significant role in judges decisions?

[rockscan]

If you search for “intentionally underemployed” or even “underemployed” or even “spousal support entitlement” on canlii you will find cases.

There have been a few where one parent quits to start a home based business (one of a dad who decided to open a home daycare comes to mind) or just not work for strange “medical” reasons.

[tilt]

You would also be looking for the term "inputting income" "inputted income". Usually in the context of CS but I have seen it for SS as well. Basically the judge detiremines that they could be working FT at their prior level unless there is a medical reason they can't.

And ya, Judges are alive to the issue of people deciding they want to coast for a bit while getting SS. I find judges are scrutineering medical notes a LOT more than they used to as Doctors have been a little too free with them in the past.

The current situation wil be balanced against the past history. It will take a while to even get before a judge so hopefully the ex will need to get a job to keep a roof over their head and the judge can see they are capable fo work. Six years is pretty short to be looking for SS. It may just be a bluff if they are asking.

[seeker101]

A very big consideration in SS is whether there are kids. If so, then even short length of marriage usually doesn't matter and there is most likely entitlement.

Secondly, your ex may be able to prove entitlement based on CURRENT circumstances and income disparity levels. But there are good arguments for having time limited SS based on length of marriage and the fact that ex worked in the past and should be looking to achieve self sufficiency at the earliest.

The fact that ex earned more than you in the past for most duration of marriage shows that she should be able to achieve self sufficiency soon (goes back to my point above). Also, this point could be used to argue for imputing income, hence reducing the SS amounts.

You many be aware that there is an option of lump sum SS as well which is not tax deductible for payor. With proper release terms, that could be an option too.

Based on all these factors, you should send your ex an Offer to Settle.

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[Janus]

As others have said, in a bid to keep lawyers employed, spousal support guidelines and rulings are incredibly vague and contradictory.

That said, we can hazard a guess: Short marriage and ex had a high income until recently...

I would not be offering any SS in this case. Maybe as seeker said a small lump sum, but definitely nothing more than that.

I'm assuming that you do not have children.

[JonS]

As others have said, in a bid to keep lawyers employed, spousal support guidelines and rulings are incredibly vague and contradictory.

That said, we can hazard a guess: Short marriage and ex had a high income until recently...

I would not be offering any SS in this case. Maybe as seeker said a small lump sum, but definitely nothing more than that.

I'm assuming that you do not have children.

There is one child (4 years old). I should have mentioned that, my apologies--i just didn't think it was relevant to SS entitlement decision.

[Janus]

What is the custody situation with your child?

Did either parent take time off work to care for the child?

[JonS]

What is the custody situation with your child?

Did either parent take time off work to care for the child?

There is no separation agreement yet. This is all very recent (within the last month or so). At the moment, the child is split 50/50 verbally because no one wants to be the one to say no to the other. It's very difficult to discuss with partner, so lawyers are starting to come into play now.



I'm just trying to get as much information as possible and understand what the possible outcomes are--even if they are in the distant future. I'd like to be well prepared from now on, even if it means bad news.



Both worked since child birth. No one has taken time away from work to care for the child.

[tilt]

To clarify, neither parent took parental leave? The child was in childcare right after birth (and, assuming this was a natural pregnancy, the birth parent went back to work the day after giving birth)? That is a pretty unusual situation. If I understand timelines, the child was born and within two years one of the parents (not sure if it is the parent who gave birth, or the parent with primary care of the child, or who) became ill enough to be prescribed medication, that then resulted in them losing their job. If they were the birth parent and did not have a chance to take parental leave it may have been PPD or PPP related. I feel like there is enough of the story missing from your posts that we can’t really tell you what to expect.

The Spousal Support is usually less if there is also child support. Basically the formula is that both spouse’s incomes are combined and then redivided via CS support (offset in the case of shared parenting) and SS so that each household is at about 50% of the combined income. If everything is still very new and the other parent isn’t working yet, you might want to look at a separation coach instead of a lawyer. It is a good idea to talk to a lawyer to understand rights and responsibilities, but lawyers escalate the situation as Court is an adversarial process.

A (good) separation coach can get you two working together as a team on the co-parenting and save a LOT of money.

[JonS]

To clarify, neither parent took parental leave? The child was in childcare right after birth (and, assuming this was a natural pregnancy, the birth parent went back to work the day after giving birth)? That is a pretty unusual situation. If I understand timelines, the child was born and within two years one of the parents (not sure if it is the parent who gave birth, or the parent with primary care of the child, or who) became ill enough to be prescribed medication, that then resulted in them losing their job. If they were the birth parent and did not have a chance to take parental leave it may have been PPD or PPP related. I feel like there is enough of the story missing from your posts that we can’t really tell you what to expect.

I'm sorry, I misunderstood an earlier comment. I meant to say, after maternity leave, both parents worked and no one committed to staying at home to care for the child and stop their career. The parent who gave birth took 12 months of maternity and then went back to work. The other parent worked pre-pregnancy, during pregnancy and post birth and never took maternity or paternity leave at any point. They continued their job as if nothing had changed.


I wish I knew what to reveal and what not to reveal of the circumstances--this is all very overwhelming and I am trying my best.



Is there any risk of discussing things like this in the long run? I know that sounds paranoid, but could revealing too much online (outside the conversations with a hired lawyer in an office) become a problem? Legally? or in mediation? My main goal right now is just research and understanding the law and the nuances of cases. That's why I am mainly interested in reading existing cases (using CANLII for example) and not really looking for any advice or direction (I doubt people would want to give that here anyway or recommend anyone take advice from an online forum).



I appreciate suggesting a divorce coach. I will certainly look into that. Thank you.

[tilt]

That maternity leave may affect their career, definitely affected their retirement as their CPP and any private pension was unfunded for a year, and may entitle them to spousal support, especially if they are not working now.

You might want to offer a slightly unequal division of assets (in their favour) to compensate for no spousal support. A problem with spousal support is that once granted, that entitlement is hard to take away.

When looking on CanLII, focus on your province’s cases. I find it interesting that the biases do show up in the regions. Look at the appeals court for what kind of decisions have been reversed. There are quite a few family law firm blogs that highlight cases. As well, CanLII offer CanliiConnects, which highlights decisions.

[Janus]

The parent who gave birth took 12 months of maternity and then went back to work.

That is a very convoluted way of saying "mother".

Anyhow, the answer to the question then is yes, a parent did take time off work to care for the child. That is potentially very relevent to spousal support considerations.

I wish I knew what to reveal and what not to reveal of the circumstances--this is all very overwhelming and I am trying my best.

Your call, you can slightly change information if you are worried. The better your input, the more accurate the advice you can get.

not really looking for any advice or direction (I doubt people would want to give that here anyway or recommend anyone take advice from an online forum).

Obviously you take any advice here with a grain of salt and attempt to corroborate it with Canlii or your own lawyer. That said, Canlii is not as cut and dry as you might hope. The trick is knowing what is relevent.

I appreciate suggesting a divorce coach. I will certainly look into that. Thank you.

Careful about spending too much money now at the beginning. You might need a lot for lawyers down the road.

[Janus]

There is no separation agreement yet. This is all very recent (within the last month or so). At the moment, the child is split 50/50 verbally because no one wants to be the one to say no to the other. It's very difficult to discuss with partner, so lawyers are starting to come into play now.

Listen carefully, this is very important:

Maintaining 50/50 is the most important thing over the next while. Nothing else matters in comparison. If lawyers are coming into play your ex will likely be encouraged to grab more than 50%. That's an emergency, contact your lawyer immediately.

To reframe, if the mother withholds the child for any reason, you should be looking to be in front of a judge within days. The tendency is to "keep the peace" and wait much longer. That almost never works out well.

In family law, if you let the mother keep the kids for any appreciable amount of time, they consider it to be a voluntary move on your part, since you did not fight it in court.

I'm just trying to get as much information as possible and understand what the possible outcomes are--even if they are in the distant future. I'd like to be well prepared from now on, even if it means bad news.

If you maintain 50% custody then the range of outcomes is not terrible. They don't want your child to suffer, so there is a limit to how much you can lose.

If you have less than 50%, then the child's welfare is not as tied to your own welfare, so the range of unpleasant outcomes increases dramatically.

Both worked since child birth. No one has taken time away from work to care for the child.

Careful, as you pointed out, the mother did indeed take time away from work, and now she is (relatively) unemployed. It would not be much of a stretch to argue that the maternity leave is related to her current employment situation.

I would like to amend my answer to your question. Given that you have a child, and that the mother is unemployed, the most important consideration for spousal support is that it is time limited or lump sum. You want a firm end date just in case she is not able to secure employment for a long time.