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Assessi ng the Impact of the

Rolaasod ~ n d " c Ih" AceOM 10 Infoc",,,Uon Act I


Dlvulg6(s) gn vgrtu d g 13 Lol sur l'a cc o 5 a l'lnfor mat ion.
Spousal Support Advisory Guidel ines (SSAG)
Final Report
January 30, 201 2
Prepared for:
Department of Justice Canada
WINNIPEG I OnAWA I EDMONTON I REGINA
adrnin@pra.c a www.pra.ca
Departmetlt Of Justice
the Impact of the 30, 2012
Table of Contents
R" loa. od undor tho Ace .... to Information Ad I
OIvulg(o(s) M vorlu do I" Lol sur I' accos I> l' lnfor ma tion.
Execll tive sunlmary ............................. ............... ...... .. ... .. ... ..... ... ................. .. .. .. .... ... .................... . . 1
1.0 Introduction..... ...... ... ... ....... ..................... . .. .... ......... .. .... ...... .... ... ......... ........ ... ....... .. I
I. J Structure of the report .. ..... ..... .. .... ..... ....... . ...... .... ...... .... ...... .. ..................... .............. 1
2.0 The Legislative Framework ......... ............ .. .. ........... .... ............... ......... ...... ....... .... ... ........... 2
2.1 Overview of the Spousal Support Advisory Guidelines ................... .... .. ... ... ...... ..... 2
2.2 Research issues and questions ...................................................................... ............ 6
3.0 Methodology ...... ..................................................... .. ....... .... ........................ ..... ................ .. 7
3.2 Methodology considerations and limitations ................................................. ......... 10
4.0 Findings ........................................ ....................................... ............ .. ........... ..... ..... ..... ... ... II
4.1 UseoftheSSAG .......... .. .. .... .. .... .... .... .... ...... .. .. .. .... ...... .... .............................. ......... 11
4.2 Impact of the SSAG .. ................ ....... ........... ........ ........ .......... .... .. .......... ......... ......... 25
4.3 Unexpected impacts ....... ........... ........ ...................... .. ........................ ....... ............... 34
5.0 Conclusions ............... .. ... ........... ....... ........... .... ... .. ... ... ........... .. .... ............. ...... ............... ... 36
5.1 Use or the SSAG .. ....... .. .............. ..... ................. ........ ........ .. ............... ...... .. .... .... .... 36
5.2 Impactsofthc SSAG (intended and unintended) ............................. ....... .. ... .. ..... ... 37
Rcfcrcnces ......... .......... .. .. ........... ...... ........ ......... ....... ........ .. ........ ............. .. ... .... .. ........ .............. .. ... 39
Appendix A - Research matrix
Appendix B - Key informant interview guides
Appendix C - Survey instrument
Appendix D - Additional survey data tables
Department of JWitice Canada
Assessing tlte 1mpact off"e SSAG-Jmlllary 10, 20/2
Executive summary
Introduction
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The Spousal Support Advisory Guidelines (SSAG) are {he outeome of a long-term project funded
by the Department of Justice Canada, which was commenced to explore ways of bringing more
consistency and predictability to the determination of spousal support. The SSAG are designed to
be used within the existing legislative framework to :lid lawyers, mcdialors,judges, and spouses in
decis ions about the amount and duration of spousal support, after a finding of entitlement. As
suggested by their tit le, the SSAG are intended to be used on a voluntary basis only.
The Department of Justice has hired PRA Inc. to conduct a research study to evaluate the current
usc of the SSAG, and to assess the impact of the SSAG on the process of detcmlining the
amount and durati on of spousal support.
Overview of the SSAG
Professor Carol Rogerson (FaculLy of Law, Uni versity of Toronto) and Professor Rollic
Thompson (Dal housie Law School) were retained by the Department of Justice in 2001 to dircct
tilt: project. The Departmclll also established a Advisory Working Group on
Family Law Issues composed of lawyers, judges, and mediators from across the count ry to
advise 011 this proj ect ttS well as on othcr famil y law matters.
After much background work and discussion, the Draft SSAG were released in January 2005.
Over 50,000 copies of the DraH proposal were downloaded from the Department website in the
first year after its release. This was foll owed by further discussion and feedback from
stakeholders across the country. In July 2008, the final version of the SSAG was released as
well as a User Guide.
The Advisory Guidelines arc intended as a practicnl tool to assist spouses, lawyers, mediators,
and judges in deteml ining the amount and duration of spousal support in typical cases.
Widespread use of them would then lead to four objectives:
.... reducing conflict and cncouraging settlement;
iii- creating consistency and fairness;
II- reduci ng costs and improving effici ency; and
II- providing a basic structure for judicial elaboration.
The SSAG incorporate the basic principl es of compensation and need that the Supreme Court of
Canada has identified as the basis for spousal support under the Divorce Act, but they provide a
more structured way of implementing thcse principles through fonnul as based 0 11 sharing
specified percentages of spousal incomes.
The Guidelines include two main formulas (the with-chi ld formula and the without-chi ld
fonnul .. ), along wi th variations and supplementary formulas, to aid in determining the amount
and duration of spousal support awards. These formulas produce ranges in which the amount and
duration of awards !.:all be located (Rogerson & Thompson, 2006).
Methodology
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The research study was guided by a research matrix 10 address four questions:
.. Are the SSAG being used?
.... Are the SSAG being used correctly?
.... Have the object ives of the SSAG been ful fi lled?
.. Have there been any unintended impacts orthe SSAG?
The methodology involved three mai n lines of evidt:.: nce:
.... a review of relevant documents such as those on the SSAG website at the University of
Toromo (and that ineluded monitoring of reported case law 011 spousal support by the
project di rectors), excerpts from the Annual Review of Family Law, a Department of
Justice Canada contracted research study on the pre- and post-SSAG analysis or ease law,
and data acquired by the Department of Justice from Canada Revenue Agency on the
number of spousal support orders in Canada over time
.. key infonmUlt interviews with relevant stakeholders includi ng;
- lawyers that serve as provincial/territorial sections heads of the National Family
Law Secti on of the Canadian Bar A:ssociation (NFLS-CBA) and members of the
Advisory Working Group on Family Law Issues (n=21);
judges who are members oftbe Advi sory Working Group on Family Law Issues (n=4)
developers of software used to implement the SSAG (n=3)
other knowledgeable key informants (incl uding those involved in developing,
monitoring, or writing about the SSAG as well as other lawyers) (no:==6)
.. an on-line survcy of members of the NFLS-CBA
Findings
The findings arc around the four research questions..
Are the being used?
All li nes of evidence indicate that usc and acceptance of the SSAG are growing as familiarity
with the SSAG increases over time. Three years aft er the of the final version of the
SSAG, they are being refcrrcd to extensively by lawyers, judges and mediators. Over 90 percent
of survey respondents said they always or frequently use them. However, while the SSAG arc
used extensively overall across Canada., the extent ofSSAU use varies between regions. From
the survey results, ia\"'Yers practicing in British Columbi a and Ontario are morc likely to use the
SSAG than those in other areas of Canada.
Court endorsement appears to be highly linked to the usc oflhe SSAG and is likely responsible,
to some degree, for regional differences observcd regarding the extensiveness of SSAG usc.
Almost all survey respondents (over 90%) practicing in Brit ish Columbia and Ontario, where usc
of the SSAG is highest, also said all or most judges are using/referri ng to the SSAG, compared to
50%- 75% of respondents in other parts of Canada. In addit ion, all lines of evidence indicate that
the presence or absence of court endorsement and j udi ciary support are important factors either
promoting or inhibiting SSAG use. For example, "court decisions endorsing their use" was the
most identi fied promoting factor by survey respondents and was also identified by interviewed
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AS!ie!iS;nc tlte Impact of'he SSAG- Jalluary 30, 2012
stakeholders. Key court decisions have bccn crcditcd with cfeating precedence for the usc or
non-use of the SSAG. For example, the endorsement of the SSAG by the British Columbia Court
of Appeal in Yemchuk v. Yemchuk (2005) and by the Ontario Court of Appeal in Fisher v.
Fisher (2008) is credited with promoting wider acceptance of the SSAG in these provi nces. The
very limited usc of lhe SSAG in Quebec is attributed to the Quebec Court of Appeal's dismi ssal
uflhe SSAG in G.V. v. G.V. (2006).
Many survey respondents (69%) identifi ed the availabi lity of the software that was developed to
perform SSAG calculations as a factor promoting SSAG usc. The document review and
interviewed stakeholders indicated that the availability ofSSAG software facilitates and
improves the ease with which amount and duration rangcs can be determined. However,
interviewed stakeholders also noted that the cost of the soflware can li mit its availabili ty to some
(particularly solo practitioners), although only 12% of survey respondents identified the cost of
the sothvarc as a lactor inhibiting SSAG use. A fTee online version of the software is now
available, but its appl ication is limited to very basic cases.
Other lawyers' adoption and use of the SSAG is another important promoting factor for SSAG
upt.:l ke, as reported by 67% of survey respondents, as well as some key informants. Interviewed
stakeholders observed that support for the SSAG from the family Bar creates an expectation for
the usc of the SSAG, and a lack of (his support in a particular region can discourage SSAG usc.
Key infonnant interviews and the survey revcalcd that the SSAG are used in a wide variety of
cases and si tuat ions. No major difterenccs in the use of the SSAG for different case typcs (cases
involving or not involving chi ldren; cases involving long or short marriages; etc.) or different
situation lypes are evident. The SSAG are hi ghly used in all types of situations, such as
discussions with clients, negotiations wi th lawyers, settlement conferences with judges, and court
hearings. Over half of survey respondents said the SSAG are always used in each of these
situations, and over one third said they are frequently used. Key informants noted that the SSAG
provide an objective starting point for an often difficult and contentious topic.
Are tlte beillg used correctly?
All lines of evidence indi cate that not all SSAG users consider entitlement prior to using the
SSi\G. However, stakeholders were somewhat divided on this issue. Whi le over half (56%) of
survey respondents said that all or most lawyers using the SSAG first recognize and analyze
entitlement, another 40% said only some or few lawyers do so. At ti mes, the SSAG calculations
appear to be interpreted as an indicat ion or confirmation of entitlement. Just under half (43%) of
the survey respondents believe that they need continuing education on determining entitlement.
All lines of evidence also indicate that, in general, SSAG users are not all making full use of the
SSAG's guidance on exceptions and restructuring. For example, case law reviews found few
examples of judges referring to any of the exceptions provided in the SSAG. Case law reviews
also provide examples of specific instances where the SSAG's guidance on exceptions or
restructuring would have applied, but the SSAG were not used. Survey respondents mainly
report using the guidance on exceptions and restruct uring only occasionally (50% and 40%,
respecti vely), plus 30% of survey respondents report rare or no lise of exceptions and 48% repDt1
rare or no use of restructuring. Survey respondents mainly attributed this to having had few or no
cases where these clements can be appl ied (almost half of respondents in both cases), or to a lack
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Olvulg6(.J. n ve rlu dela Lot sue 6 l' lnformation.
Depar/meltt Of Cllnm/a
the Impllct ufthe SSAG-January 30, 2011
of fami liarity with these clements (43% and 48% of survey respondents reporti ng lack of
famil iarity as a reason for not lIsing exceptions and rcstruct uring, respectivcl y). It appears that
more continuing educat ion on analyzing entitl ement and on using the SSAG's guidance on
exceptions and restructuring is needed, and would be appreciated by those using the SSAG.
,v
The SSAG's calculations on amounts generally are being used and appli ed extensively in cases
both with and without involvement of the j udi ciary. Documents released early in the life of the
SSAG provide evidence that the SSAO's guidance on amount was accepted early and was
relatively quick to be applied. Most key informcHlts identifi ed that the SSAO's guidance on
amount of spousal support is bei ng used and applied. In addition. the majori ty of survey
respondents said that cases both without (66%) and with (63%) judiciary involvement are al ways
or frcqucmly settled wi thin the SSAG amount range.
There is also evidence that the SSAG' s calculations on duration arc being used and applied to
some dt:gree; however, the study revealed more reluctance regarding the SSAG' s duration
calculations. Case law reviews suggest early and cont inued reluctance to use SSAG durat ion
ranges, 8S well as misunderstandings and mis use offhe SSAG's duration ranges. Most key
informants identified that the SSAO's duration nmges are being applied less (or ignored morc)
consistently than the SSAG' s amount ranges, even in regions where the SSAG are used
extensively (such as Briti sh Columbia). Half or close to half of survey respondents said that
cases both without and with j udiciary involvement arc always or frequently settled wit hi n the
SSAG's duration ranges (48% and 50%, respectively) . While the amount and duration ranges arc
intended to be lIsed together, cases arc more frequentl y seltled within the SSAO's amount ranges
than withi n the SSAG's duration ranges. Reasons for not using the SSAG's durational guidance
include:
... 3 lack of understanding about how to apply durat ion ranges;
... a lack of court precedence for the usc of the SSAG durati on ranges;
... perceptions that the duration ranges arc too high; and
... applicati on of the SSAG to interi m cases, which delay decisions about duration.
The study also revealed some issues related to {he appli cation of the ranges for amount and
duration. All lines of evidence indicated a rdatively common tendency for support orders to be
si tuated in the middle of the SSAG ranges. In <lddition, it appears that many spousal support
orders (particularl y mid range orders) are made with little explanation or judicial reasoning.
These observat ions suggest that some SSAG users may "blindly" apply the SSAG fonnu las
wi thout fully analyzing the facts of the case and wi thout taking full advantage of the opportuni ty
for discretion thaI the SSAG ranges allow.
The extent to which cases are settled within lhe SSAG ranges varies by region. From survey
responses, spousal support cases in Bri tish Columbia and Ontari o are more likely to be seilled
withi n the SSAG ranges for both amount and duration than cases in other parts of Canada. This
is not surprisi ng, given the finding that the SSAG, in gt!neral, are used more extensively in
Briti sh Columbia and Ontario than in other areas.
Have tlte objectives oflll e SSAG been f ulfilled
.. under Ih" Aooess 10 ACI'
Olvulglt(.) on vorlu de la Lol sur I'acc;,s II l' lnformal ion
Department of Justice Canm/tl
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Assessing tlte Impact of the SSAG-JlInuary 10,2012
It generally is agreed that the SSAG help to reduce conflict and eneoLi rage settlement of spoLi sal
support cases, as shown by alilincs of cvidence. For example, approximately two thirds (63%) of
survey respondents agreed or strongly agreed that the SSAG reduce conflict, and close to 80%
agreed or strongly agreed that the SSAG encourage settlement. Key informants notcd that the
SSAG aid spousal support negotiations by providing an objecti ve starting point for discussions,
narrowi ng the range of possible outcomes, and helping to shape client expectations about amount
and durat ion.
As the SSAG aim to promote settlement, they are expected to reduce the number of spousal
support cases going to court; however, their impact with regard to this indicator is obscured to
some degree by a more gencral trend within family law toward altemativc fonns of dispute
resolution (which also results in an increased number of cases being settled out of court).
AlLhough the SSAG are also expected to reduce the time needcd for negotiating settlement, as
revealed through thc document revicw, cases involving spousal support arc often complex and
multi-faceted. As settlement often requires negotiations concerning other issues in addit ion to
spousal support issues, it is difficult to determine thc extent to which thc SSAG reduce
negotiation time. While dose to half (47%) of survey respondents believe the time needed to
negotiate settlement has decreased at least somewhat since the introduction of the SSAG, close
to half (46%) also report no change or said the did not know or did not ofTer a response.
The SSAG have helped to increase the consistency of spousal support awards, with 79% of
survey respondents agrccing or strongly agreeing this has occurred. Key infonnnnts noted that
spousal support awards prior to the SSAG were di scretionary and more variable. All tines of
evidence indicate that, sinee the SSAG, coupl es in similnr situat ions arc morc likely to receive
similar support awards, although, again, opinions on this arc somewhat di vided. Whi le just over
half(54%) of survey respondent s said the li kelihood of this has increased at least somewhat
since the introduction of the SSAG, another 44% sai d either this has not changed or they did not
know/no response.
Some uncertainty exists regarding the degree to which the SSAG have improved fairness in the
process for detemlining spousal support awards. Achievement of greater consistency in awards
among couples in similar I.: ircumstances is generally perceived as an improvement in faimess.
However, not all agree that narrowing the range of spousal support awards across the country is
necessaril y fair. In addition, the SSAG arc expected to encourage individuals to pursue spousal
support who may not have done so prior to the SSAG. However, eRA data indicates that the
number of new spousal support orders has becn stcadi ly decreasing throughout the li fe of the
SSAG. As idenrifying all factors affecting the numbers of spousal support awards is outside the
scope of thi s research, we cannot draw any definitive conclusions from the eRA data.
Key infom1ant interviews and the survey ofNFLS-CBA members indicate that the SSAG
generally are reducing the costs and improvi ng the efficiency of the process for determining
spollsal support awards (with 69% of survey respondents agreeing or strongly agreeing that this
is the case). Key informants mentioned various ways in which the SSAG can contribute to cost
rednctions and efficiencies, such as;
... The software can speed lip and simplify lhe process for detennining appropriate ranges
for spollsal support .
Releued under the Acc,,"" 10 InfermaUon Ael l
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Department oj Jwilice Ctlflfll/Il
Ihe ImpllCI UJlhe SSAG-JtlnUllry 30, 10/2
.. The SSAG can provide an objective starling place for di scussions and di rect and shorten
the analysis, thereby reducing lawyer time.
.. The objectiveness of SSAG calculations and f:lnges can increase perceptions of
legitimacy and reduce the number of contestcd spousal support cases.
.. The SSAG can also facilitate settlement, which is less costly than liti gation.
vo
However, while a high proportion of stakeholders believe the SSAG are reducing costs and
improving efficiencies, not all believe that (or are aware of whether) this is translating to reduced
legal costs to clients.
All lines of evidence identify that a body of case law is emergi ng, which provides some useful
discussions of various elements oCthe SSAG. However, within this body of cases, the quality
and extent of judicial reasoning is variable. In many spousal support cases in which the SSAG
are used, orders continue to be made with little explanation or legal analysis.
Have there been any unintended impacts of the SSAG?
The research did not reveal any widel y identifi ed unintended impacts. Any perceived negati ve
uninlended impacts are mostl y related to mi sunderstandings, mi suse, and unsophisticated lI SC of
the SSAG. The document review identi fi ed misunderstandings and examples of misuse, and
unsophi sticated usc of the SSAG that appeared relatively carl yon and have persisted. The key
inforinant interviews and survey results indicate that these misunderstandings and examples of
improper use arc st ill issues for somc. These mainly revolved around:
.. Failure to properly recognize and analyze entitlement, which was the unexpected impact
most referenced by survey respondents. Key infonnants identified that SSAG
calculations are sometimes used to presume entitlement.
.. Not lIsing all aspects of the SSAG to their full potcntial, such as the guideli nes on
exceptions or restructuring.
Key infonnants also noted that some judges and ):l\vye rs have been hesilant to exercise
the discretion that the SSAO allows (defaulti ng to SSAG awards, and resisting
the use of exceptions and restructuring).