Spousal Support Advisory Guidelines: The Revised User's Guide

14 Crossovers Between Formulas When Child Support Ends (SSAG 14.5)

When child support ends, if there is a continuing entitlement to spousal support, it will be necessary to cross over from the with child support formula to the without child support formula. Crossovers will typically involve medium length and long marriages with children. In these cases there would have been dependent children at the time of separation and hence spousal support would have initially been determined under the with child support formula. After child support has been terminated, these cases may be brought under the without child support formula on an application for review or variation. In some cases the crossover, involving the application of two different formulas, may be relevant in the calculation of retroactive support.

We are now seeing increasing numbers of crossover cases—no surprise given the length of time the SSAG have been in use—and these cases will only become more common in future.

For good examples of cases where the crossover between formulas has been explicitly recognized and discussed see Gray v. Gray, 2014 ONCA 659; Holman v. Holman, 2015 ONCA 552; Domingues v. Domingues, 2013 ONSC 1639; Abernethy v. Peacock, 2012 ONCJ 145 affirmed on appeal [2013] O.J. No. 1768 (S.C.J.); Purgavie v. Purgavie, 2012 ONSC 2268, Maber v. Maber, 2012 NBQB 337; Hamden v. Hamden, 2012 NBQB 331; and Beck v. Beck, 2012 NLTD(F) 34.

Crossover cases may require a redetermination of amount, or a determination of duration, or both. The two formulas are driven by different underlying factors, even though they overlap considerably in longer marriages.

  • In shorter marriages, apart from exceptions, there will not usually be any further duration left after child support ends and thus no room for crossover.
  • In the medium-length to long marriages where there will be room for crossover, the duration of support will be driven by length of marriage and so will be the same under both formulas. For marriages under 20 years in length there will be time-limits which, while not applied in an initial application under the with child support formula, may now be imposed; see Holman, above; Maber, above; and Handman, above. For those over 20 years in length, support may remain “indefinite (duration not specified)”, or may be time-limited, if there are other material changes.
  • In a crossover situation, the amount of spousal support may go up or down or stay the same. At the lower end of medium-length marriages, the without child support formula may lead to lower amounts. In marriages of 20 years or more, the range for amount will usually be higher after crossover to the without child support formula. In between, there will usually be considerable overlap of the ranges under the two different formulas, such that the amount of spousal support may not change, even if the duration might. 
  • These are mostly cases with strong compensatory claims, as compared to medium-length and long marriages where there were no children of the marriage. One would thus expect amount and duration to be near the high end of the range.
  • In these cases s. 15.3 of the Divorce Act and the Advisory Guidelines exception for inadequate compensation under the with child support formula may also be relevant. If the amount of spousal support was inadequate in the past because of the statutory priority to child support, spousal support may have to continue beyond the maximum time limits generated by the formula in order to adequately satisfy the recipient’s compensatory claims. See SSAG 12.11 and the discussion of this exception above under “Exceptions”. The s. 15.3 exception for inadequate compensation was applied in both Gray and Abernethy, above.
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