CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
sum. (c) Duration – how long support will be payable. The threshold for establishing entitlement is relatively low. The three grounds for entitlement are as follows. 1. Contractual grounds These arise when the parties have an agreement – such as a prenuptial, marriage, or cohabitation agree ‑ ment – setting out a support arrangement. 2. Compensatory grounds Compensatory entitlement recognises that when a marriage ends, its economic consequences should be fairly shared. Support may compensate a spouse for sacrifices made during the marriage that limited their career, education, or income opportunities, as well as benefits gained by the higher‑income spouse as a result of those contributions. Compromised careers, foregone education, dimin ‑ ished earning capacity, and the corresponding enrich ‑ ment of the other spouse are all key considerations. Notably, compensatory support is flexible and may be awarded even when the recipient is employed and reasonably self‑supporting at separation. MacLean has achieved record compensatory awards, including CAD100,000 per month for a woman and CAD30,000 per month for a man, even though each recipient earned more than CAD400,000 annually and – in one case – held CAD25 million in property. 3. Non‑compensatory grounds This “needs‑and‑means” basis recognises that need alone may justify support. It is rooted in the social‑obligation model of marriage, where marriage creates interdependence and, upon breakdown, the disadvantaged spouse’s needs should first be met by their former partner rather than the state. Spousal Support Advisory Guidelines (SSAG) Since 2005, the SSAG have guided the amount and duration of support. In longer marriages, the formulas often produce results close to income equalisation.
In shorter marriages with children, the formulas rou ‑ tinely allocate more than 50% of the parties’ after‑tax income to the recipient and children. In shared‑par ‑ enting cases, the default result often equalises net disposable income 50/50, which can be frustrating for high‑income payors. The SSAG are applied in most cases, with exceptions where one or both parties earn over CAD350,000. There are two formulas. 1. Without child support formula Used when there are no dependent children (or all children are adults). It calculates 1.5% to 2% of the gross income differ ‑ ence multiplied by the number of years of the relation ‑ ship, capped at 50% of the payor’s gross income. 2. With child support formula A more complex formula that typically allocates 52–58% of the parties’ net disposable income to the recipient and children, depending on the number of children. It adjusts for child support priority and accounts for net income after child support (including grossed‑up table amounts and Section 7 expenses). It also recognises the custodial parent’s reduced earn ‑ ing capacity due to childcare. For shorter marriages with children, this formula usu ‑ ally yields significantly higher support amounts than the “without child” formula. Shared and split‑parent ‑ ing cases often use a “set‑off” approach, which works when incomes are similar but may create hardship for high‑income payors. Duration Under the SSAG The SSAG provide a range of outcomes. • Low end: 0.5 years of support for each year of marriage. • High end: 1 year of support for each year of mar ‑ riage. • Over 20-year marriages: indefinite support, subject to review or material change.
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