“In 2008, the authors of the SSAG, Professors Rogerson and Thompson, noted that cases involving disability are “hard” cases because “need” looms large. “Disability will be an important factor in locating the amount and duration within the ranges in these cases”: SSAG, s. 12.4. They said:
Faced with a recipient with a long-term disability, Canadian courts have responded with one of three approaches, here stated in declining order of frequency.
(i) Lower Amount, Extend Duration: most courts will extend duration, even to be “indefinite”, while keeping the amount within the range, at or near the low end;
(ii) No Exception: a slightly smaller number of courts will fix an amount in the range, often towards the upper end, and use the maximum duration, even though that means support will end while need continues;
(iii) Increase Amount, Extend Duration: a much smaller group of courts will respond to the greater need in disability cases by increasing amount and extending duration.
In the SSAG Revised User’s Guide, 2016, Professors Rogerson and Thompson noted that courts continued to struggle with cases involving the disability of a spouse. They said, at s. 12(d), p. 62:
The law in these cases is particularly uncertain and confused, as the courts have not yet been able to work out a consistent approach. …
Cases involving permanent illness or disability in short and medium length marriages are “hard” cases and they are often litigated because they are difficult to settle. We thus have many reported decisions, but even with some appellate court rulings on the issue no clear approach has developed. … to a large degree the cases involve competing ideas about entitlement that are still being worked out in the courts.
These 2016 remarks continue to be applicable. In the same document, at p. 64, Rogerson and Thompson also said:
Until appellate courts provide further guidance, these divergent approaches towards illness and disability will continue. As for us, we stated in the SSAG, “Our preference would be the … ‘no exception’ approach, which seems more consistent with the modern limits of spousal support as a remedy.” We will have to await further developments in the law. [Emphasis added.]