“The appellant is correct in pointing out that the ranges generated by the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) formulas are the presumptive starting point for awarding support: McKinnon v. McKinnon, 2018 ONCA 596, [2018] O.J. No. 3487, at para. 24; Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105-106. While not binding, the SSAGs should not be lightly departed from: Slongo, at para. 105. Any departure requires adequate explanation: McKinnon, at para. 24. That being said, while the SSAGs formula offers a valuable tool in assessing a reasonable amount of spousal support, there are complicating factors that must be considered: Gray v. Gray, 2014 ONCA 659, 50 R.F.L. (7th) 257, at para. 45.
Where, in my view, the appellant’s position errs is in equating the principled guidance offered in the SSAGs as a whole with the values generated by the short-hand formulas. Those formulas are intended to be used as tools only and, according to the SSAGs themselves, cannot be applied automatically in every case.
Re-partnering in particular is a circumstance that the SSAGs suggest, at s. 14.7, requires case-by-case decision-making:
Where the recipient remarries or re-partners with someone who has a similar or higher income than the previous spouse, eventually – faster or slower, depending upon the formula adopted – spousal support would be extinguished. We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision making.
Re-partnering is also specifically contemplated by the SSAGs as a reason to revisit entitlement to support and consider terminating it. On the topic of re-partnering, the SSAGs state at §13.8:
Entitlement may then be revisited for any number of reasons – the recipient finding employment, the recipient’s remarriage or re-partnering, the payor’s retirement or loss of employment, etc. – and support may be terminated if entitlement has ceased.
Section 16 the Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), echoes the sentiment in instructing that re-partnering “does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated.” This depends on “whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.”