Dependants’ Support and the Spousal Support Guidelines
This is the last of my blogs this week on dependants’ support.
Perhaps the most difficult aspect of this area of law is the quantification of the support order made in favour of a dependant, and the particulars of payment. Where the dependant is a surviving or former spouse, the courts have been increasingly of the view that reference to family law principles is an appropriate place to start with necessary adjustment for the estates context. In family law, support is geared to income. In succession law, the context necessarily forces the court to the circumstances of the dependant and the resources of the estate at the time that the application is heard.
As I’m sure most are well aware, the Spousal Support Advisory Guidelines were the product of an extensive study by Professors Carol Rogerson and Rollie Thompson. They have been revised and updated since first interim release in 2005 and final release in 2008. The Guidelines are not law, but are intended to help spouses, lawyers, and judges determine support awards. While not expressly endorsed by the Department of Justice as law, they are held out as highly useful. Their utility in the estates context is a matter of debate, given that they are primarily aimed at determining support issues between spouses both of whom are alive and working or possibly employable. Moreover, the Guidelines are intended to be useful in situations where payors have annual incomes between $20,000.00 and $350,000.00, and are less useful outside that range. Applying the Guidelines to a static pool of assets in an estate is challenging.
In Quinn v. Carrigan, the deceased was survived by his common-law spouse, ex-wife, and two adult independent children. There was litigation on a number of points and the latest round came after two trials and two appeals, with this appeal brought to order a third trial. What was at issue here was the quantum of dependants’ support obtained by the common-law spouse. The Divisional Court dealt with the matter decisively holding that the common law spouse had been inadequately provided for and that the trial court had ordered inadequate support as well. For present purposes, it is not the facts of the case that are relevant but the considerations that the Divisional Court accepted as relevant in determining the adequacy of support. First, the Court acknowledged the difficulty of establishing the proper quantum of an award and terms of payment. Second, the Court indicated that turning to touchstones or guidelines can be helpful given the inherently discretionary nature of the Court’s jurisdiction. In this case, the application judge used the Spousal Support Guidelines to determine the duration of support that was owed and made errors in calculating the overall quantum of support that was owed to the dependant. The Divisional Court held that there was a lifetime support obligation that was owed to the common law spouse based on the duration of the relationship and the fact that there were adequate assets in the estate to meet those obligations. The court held that the Spousal Support Guidelines adjusted for use in the estates context, but that the Guidelines are helpful but just “one measure of an obligation the deceased owed to his or her spouse prior to death, something to be taken into account in determining what provision should be made for the spouse after death.”
Ultimately I suggest that consideration of the Spousal Support Advisory Guidelines in the estates context is positive for both family law and estates law, and is of utility in guiding negotiations in individual cases. What is often difficult in negotiations in determining an appropriate range of support for not just the principal applicant who is a ‘spouse’ but situating the spousal award within the support arrangements for all dependants. The recent case of Verch Estate v. Weckwerth, 2014 ONCA 338 (Ont. C.A.) highlights that moral claims do not stand apart from the statute, but remain very much a part of the analysis as mandated by the Court of Appeal in Cummings v. Cummings Estate, 2004 CanLII 9339 (Ont. C.A.). In my opinion, the Guidelines help in structuring the spousal award with the Court then able to determine priority on (admittedly nebulous) moral grounds.
Have a nice weekend everyone and enjoy the snow!