The Advisory Guidelines 27 Months Later
Professors Carol Rogerson and Rollie Thompson
April 2007
[Note: Case law summaries found in appendices to paper:
Appendix I: Appellate Cases
Appendix II: Case Law Update, Oct. 5, 2006 - April 18, 2007
Appendix III: Case Law Update By Province]
We have now entered the final phase of the Spousal Support Advisory Guidelines project, where our focus is upon making revisions to the Draft Proposal. We expect the revised and final version of the Advisory Guidelines will be available next fall. In this latest update paper, we thought it was time to step back, to inform readers of what we have learned in our most recent cross-country travels, to set out some of the changes that we know will be made in the final version, to identify some of the hard issues of revision that remain, and to review the ever-burgeoning case law on the Guidelines. (Our last comprehensive update was “The Advisory Guidelines 20 Months Later”, issued on October 5, 2006.)
The Draft Proposal was released by the federal Department of Justice at the end of January 2005, over two years ago. From then until July 2006, we toured the country, talking to groups of lawyers and judges, groups both large and small. For the most part, we explained how the Advisory Guidelines were constructed and how the Guidelines could be used to improve the consistency and predictability of spousal support awards. At each of these sessions, we picked up comments and reactions from those who attended, but many of the early comments reflected lack of knowledge of the Guidelines, or misconceptions or lack of use.
After the National Family Law Program in Kananaskis, Alberta, in July 2006, we began another cross-Canada tour, this time seeking out feedback from lawyers, mediators and judges, in small groups. The foundation for these sessions has been the “Issues Paper”. The formal title of this paper is: “Issues for Discussion: Revising the Spousal Support Advisory Guidelines”. The paper identifies issues for revision and, on some issues, possible options for revision.
We have now been to British Columbia (Victoria, Vancouver, New Westminster), Alberta (Edmonton, Calgary), Saskatchewan (Saskatoon, Regina), Ontario (Kingston, London, Ottawa, Newmarket, Barrie, Toronto), Newfoundland and Labrador (St. John’s), Prince Edward Island (Charlottetown), Nova Scotia (Halifax) and Manitoba (Winnipeg). In the near future, we expect to visit further locations in Ontario, Quebec, British Columbia (Kelowna) and New Brunswick.
In November 2006, we met for two days with the federal Advisory Working Group on Family Law, a national group, to seek their views on a short list of “hard” issues for revision. The Advisory Working Group will meet again on June 15-16, 2007.
Thanks to the feedback we have obtained from these sessions, as well as our many formal and informal contacts with lawyers and judges, we have developed a detailed and practical sense of how the Advisory Guidelines are being used on the ground, and a more finely-tuned understanding of what revisions may be necessary. We have also continued to read a steady stream of reported spousal support decisions citing and using the Advisory Guidelines.
When the final version of the Spousal Support Advisory Guidelines is released, you can expect to see three documents:
(i) a completely-revised final version of the 120-page complete document;
(ii) a brief report of revisions, noting the changes from the Draft Proposal;
(iii) a 20-page “operating manual” to the Advisory Guidelines.
The last of these three is intended to provide a summary step-by-step guide for the practitioner, something in between the executive summary and the full report. Once the “final version” has been released, there will be a continuing need to monitor for any major new developments in spousal support law.
A. What We’ve Learned So Far in the Feedback Sessions
We have acquired a mass of information from all those who came out to our sessions and here we are painting with broad strokes, just the major themes rather than the many detailed comments and suggestions we have received.
(1) Use by Lawyers with Clients and Other Lawyers to Shape Expectations
The most common use of the Advisory Guidelines by lawyers is with their own clients, to shape the clients’ expectations, of what they might pay or what they might receive. The Guidelines have been most valuable, we are told, in giving advice to payors, especially to those who are reluctant to pay much or anything at all. To a lesser degree, the Advisory Guidelines have also been used with recipients, some of whom maintain unrealistic notions of the support they are entitled to receive. Lawyers appreciate having some “objective” ranges for these client discussions. This use of the Guidelines now appears to be nearly universal.
Lawyers also use the Advisory Guidelines in negotiations, as a starting point. Again, this use of the Guidelines is very widespread, even in those areas where there is no consensus among the sitting judges about the Advisory Guidelines. Where the local judges regularly use the Guidelines, then the Advisory Guidelines achieve near-universal use in negotiations by lawyers. Mediators also said they use the Guidelines regularly in mediations, again to shape the expectations of the parties or to provide a framework for discussions.
(2) The Ranges Are About Right
Everywhere that we have been so far, no one has said that the ranges under either formula were off-base for their area. There were comments about particular fact situations and specific subsets of cases, where the ranges seemed “high” or “low”. Judges and lawyers in some areas inhabit the low end of the ranges, while other areas are located at the high end of the ranges. With that caveat, most lawyers and judges did feel that the ranges were “about right”. Some judges told us that they continued to use “their own method” for calculating support, and then cross-checked their numbers against the Guidelines ranges, only to find their amount and duration to fall within the ranges.
We have often been told that the range in this or that case was “too low” or “too high”, only to discover that the cases turned out to be high income cases or exceptions or restructuring situations or just weird facts. There are certain sub-categories of cases, in specific provinces or localities, where the decided or negotiated outcomes are inconsistent with the Advisory Guidelines, even after taking into account exceptions and restructuring. These are the cases which have required more exploration by us at the feedback sessions.
(3) Unsophisticated Use of the Advisory Guidelines
We heard from judges who complained that some lawyers just pitched up the formula ranges, without analysis or explanation. And we heard from lawyers, who complained that some judges just take the formula ranges for amounts and picked the mid-point. There was a general complaint that some lawyers, or some judges, seem to have forgotten about that threshold step called “entitlement”. From these discussions, and from our reading of the cases, it appears that the Advisory Guidelines are often used in an unsophisticated fashion. In particular, issues like entitlement, exceptions and restructuring have not been recognised or analysed. The choice of a particular amount or duration within the range is often left unexplained.
To some extent, this is to be expected in the first year or two of the Advisory Guidelines. Over time, as lawyers and judges become more experienced, we would expect to see more sophisticated uses of the Guidelines.
(4) Software as Educator
For many lawyers, busy with the demands of practice, their only education about the Advisory Guidelines comes from the software, from the last computer screen. Not surprisingly, the screens mostly state conclusions, not analysis or reasons. This approach contributes to the unsophisticated use of the Guidelines just mentioned. The Advisory Guidelines are a tool, to be used as part of a broader support analysis. The computer print-outs must be read with a background understanding of the law and the Guidelines. We will be working with the software suppliers to encourage the use of more prompts and reminders, to ensure that lawyers and judges remain alert to the full operation of the Advisory Guidelines, before and beyond the formulaic ranges.
(5) British Columbia’s Embrace of the Advisory Guidelines
In August 2005, the B.C. Court of Appeal decided the Yemchuk case, approving the use of the Advisory Guidelines as “a useful tool” in determining spousal support. Since Yemchuk, the Court of Appeal has continued to endorse and apply the Guidelines, in another nine appeals. In its 2006 Redpath decision, the appeal court incorporated the Guidelines ranges into the standard of appellate review in spousal support cases, discussed below. The trial courts now cite and use the Advisory Guidelines in every spousal support case, over 90 decisions now. This means that the Guidelines have been applied in a wide range of fact situations, both with and without children, testing their flexibility and usefulness. We are now seeing more sophisticated arguments and decisions in British Columbia using the Advisory Guidelines.
(6) Lump Sum Settlements
A number of lawyers have told us that the Advisory Guidelines have been particularly helpful in calculating an appropriate lump sum for the settlement of support cases. This is true, not just in without child support cases, but even in with child support cases where the recipient is prepared to negotiate a lump sum.
(7) A New Term for “Indefinite” Support?
When we wrote the Draft Proposal, the term “indefinite” simply meant an order for support without a time limit at the time it was made. A perfectly respectable word, used regularly in Canadian spousal support law, we thought. Little did we know that the term “indefinite” would be misinterpreted by many as meaning “infinite” or “permanent”. To some extent, this flows from clients and lay persons misreading the term, either in our report or in software print-outs. But some lawyers made the same mistake. We will have to find a new term to express this concept, that such orders are subject to review and variation and, through that process, even to time limits and termination. We have even suggested, only half-jokingly, that “indefinite” orders should be renamed “variable, reviewable orders”.
(8) Duration Is Often Ignored
Our feedback sessions and the case law demonstrate that the Guideline ranges for amount are often used and applied, but then their guidance on duration is often ignored or forgotten. Consistent with Bracklow, the ranges for amount and duration must be understood as related dimensions of spousal support. Under the without child support formula, for example, the amounts in medium-length marriages are reasonably generous, but we also propose time limits in such cases. If orders in such cases were to be made “indefinite”, we would have to suggest that the monthly amounts ought to be adjusted to lower ranges.
In a few jurisdictions, there are appellate authorities or strong trial court tendencies favouring “indefinite” orders in all but the shortest of marriages, even without children. What we don’t know is how such “indefinite” orders work out in practice over time, whether support is subsequently stepped down or terminated upon review or variation. Duration has proven to be the most unpredictable aspect of spousal support, showing great variation from province to province and locality to locality.
(9) A Flexible Approach to the “Ceiling”
We have heard very few suggestions for changes to the “ceiling” of $350,000 of gross annual payor income. Above this “ceiling”, the formula ranges should not generally be used and a case-by-case approach is required. From our travels, we know that informal ceilings have developed in some parts of the country, mostly in rural areas and areas where incomes are lower. At some point along the income scale, at $150,000 or $200,000 or $250,000, some judges and lawyers begin to feel uneasy with the higher-income ranges under the formulas and fall back to lower amounts. This pattern was not observed in higher-income urban areas. Instead, in some cities, we heard of lawyers and judges applying the Guidelines formulas to payor incomes above $500,000 and even as high as $1 million. Despite these regional differences, most seemed content to let these patterns continue for now, leaving the $350,000 “ceiling” in place.
(10) A Desire for Default Rules
When the Advisory Guidelines were first released, we sought to develop more consistency and predictability in spousal support outcomes, but we also recognised the need for flexibility in spousal support. The use of formula “ranges” went a long way to alleviate concerns about “cookie-cutter” justice, and many of those early criticisms about rigidity have now gone by the boards. If anything, as we mentioned above, lawyers and judges have tended to forget the exceptions and restructuring, additional mechanisms to obtain more flexibility under the Guidelines.
There is obviously a great hunger out there in family law for even more consistency and uniformity in spousal support. Some of the trends we’ve identified reflect attempts by judges, lawyers and clients to use the Advisory Guidelines as “default rules”: to say that “indefinite” duration must mean the default answer of “permanent” support; or to argue that the formulas should continue to operate above $350,000; or to treat the outside time limits on duration under the with child support formula as fixed entitlements. We have often been asked why we can’t narrow the ranges even more. And some lawyers think the Advisory Guidelines should just be legislated, to impose particular outcomes. In our travels, we have continued to emphasise that the Advisory Guidelines are not “default rules”, but only a tool to be used as part of the spousal support analysis.
B. Revisions Already Made or Now Proposed
Ever since the Advisory Guidelines were released in January 2005, we have received helpful advice and suggestions from lawyers, mediators and judges. As the Guidelines are applied on a daily basis to a wide range of real cases, necessary refinements are identified and new issues emerge. Here we bring together, in one listing, the specific changes made so far.
(1) Social Assistance Not “Income”
This small issue surfaced right away. We proposed that the definition of “income” under the Spousal Support Advisory Guidelines generally be the same as that under the Federal Child Support Guidelines. Shortly after the release of the Advisory Guidelines, we clarified that all social assistance should be excluded from income for spousal support purposes, usually from the income of the recipient. This differs from the treatment of social assistance under s. 4 of Schedule III to the Child Support Guidelines, which requires the inclusion of the spouse’s portion of the social assistance income.
(2) Adult Children, Section 3(2)(b) and Another With Child Support Formula
The with child support formula is actually a collection of formulas based upon the custodial arrangements: the basic formula for sole custody or primary care, a shared custody formula, a split custody formula, and a formula where the custodial parent is the payor of spousal support. The first three have a similar basic structure, while the fourth custodial payor formula is a hybrid formula built around the without child support formula. The first three work best where there is a table amount of child support plus section 7 expenses under the Child Support Guidelines.
We were approached by a number of practitioners who found that these formulas did not work well in situations where child support was determined under section 3(2)(b) of the Child Support Guidelines, where the amounts did not reflect table amounts. These are usually cases where: (i) the “adult child” attends a post-secondary institution away from home; (ii) the child makes a sizeable contribution to his or her own education expenses; or (iii) there are other non-parental resources to defray education expenses, like scholarships or RESP’s or grandparent monies. In these cases, an individual budget is prepared for the child and, after the child and other contributions are deducted, the remaining deficit is then apportioned between the parents based upon their incomes.
We then recommended another formula, one which can be calculated with DIVORCEmate and ChildView. The formula only applies where there are no children for whom a table amount of child support is being paid. It should not be used where there is one older child away at university and another still at home in high school. It only works properly where both of the children went away to university, or where the only child was left attending university away from home.
In these s. 3(2)(b) cases, the additional formula uses the framework of the without child support formula, but adjusted for the child support amounts paid, another form of hybrid formula. Once each spouse’s contribution to the child’s budget has been allocated under s. 3(2)(b), those child support amounts are grossed up and deducted from each spouse’s gross income. Then the without child support formula is applied, using the gross income disparity and the length of marriage factor to determine amount and duration.
Another advantage of this formula is that it eases the transition between formulas. Most of these cases are longer marriages and, once the child ceases to be a “child of the marriage” and child support stops, the spouses will “cross over” to the unadjusted without child support formula.
(3) Capping the Maximum at 50 Per Cent of Net Income Under the Without Child Support Formula
Early on after the release of the Draft Proposal, we suggested that lawyers and judges should look closely at the net incomes of the spouses in longer marriages under the without child support formula. This formula uses gross incomes and, where the marriage has lasted 25 years or longer, the maximum range will apply, with spousal support reaching 37.5 to 50 per cent of the gross income difference. At 50 per cent of the gross income difference, the recipient will often end up with more than 50 per cent of the spouses’ net income, especially where the payor spouse is still employed and the recipient has little or no income. This result should never occur.
After discussing the issue at the November 2006 meeting of the Advisory Working Group, we decided to modify the without child support formula in such cases. In our view, the recipient of spousal support should never receive more than 50 per cent of the couple’s net disposable income or monthly cash flow.
Once the software programs have incorporated this change, the formula range presented on the screen will reflect this limit at the upper end of the range. The software can calculate the “50 per cent of net income” limit with precision.
We also recognise that one of the advantages of the without child support formula is that you don’t need a computer to do the calculations. For those without software, or more precise net income calculations, this “net income” cap can be calculated crudely by hand, at 48 per cent of the gross income difference. This “48 per cent” method is a second-best, but adequate, alternative.
(4) Adjusting the Limits of the Shared Custody Formula
At the time that the Draft Proposal was released, the Supreme Court of Canada had not handed down its decision in the case of Contino v. Leonelli-Contino. In the Draft Proposal, we recognised that our shared custody formula might have to be revised after Contino was decided. The decision came out in November 2006. By and large, the shared custody version of the with child support formula anticipated most of the Court’s child support holdings in Contino: the use of the simple set-off of table amounts as a starting point; the rejection of multipliers; and the concern for the child’s standard of living within each household.
We have also received much feedback from mediators and lawyers working with shared custody parents in determining spousal support. Many shared custody parents opt for a 50/50 split of the couple’s total net disposable income or monthly cash flow after the payment of child and spousal support, so that the child(ren) end up with roughly the same resources and standard of living in each household. We agree that this equal split of net income should be available – not mandated, just available – in every shared custody case.
The shared custody formula for spousal support usually includes this “50/50” outcome within the range. In some cases, however, this “50/50” split falls just outside the upper or lower end of the range. We have decided to broaden the “shared custody” formula range to include the “50/50” net income split in every case. Again, the software will be adjusted to accomplish this result.
After testing out many case scenarios, we can tell you which cases will be affected by this modification. In the one-child cases, where the parents’ incomes are not that far apart or the parental incomes are lower, the upper end of the spousal support range will have to be extended a bit to include the “50/50” split. In two-child cases, any extensions at the upper end are rare and small in amount. Where the recipient parent has little or no income, in two-child cases, this modification will require some lowering of the low end of the range to include the “50/50” split. In three-child cases, it will be necessary to extend the lower end of the spousal support range to include the “50/50” split, again where the recipient has little or no income and in some other cases where there is a huge disparity in parental incomes.
We may be proposing further revisions to the shared custody version of the with child support formula, after further consultations and analysis of the post-Contino case law.
C. Some of the Hard Issues Under Consideration
The “Issues Paper” sets out a detailed list of the issues for discussion. Every one of those issues has produced comments at one or another of the feedback sessions. There are some recurring issues that are truly “hard issues”, issues which have elicited comments at almost every session and issues with which we continue to struggle in the revision process. Here we will just “flag” those issues, as the “Issues Paper” sets out the context and any options for revision.
(1) Further Revisions to the Shared Custody Formula
(2) Duration in Shorter Marriages With Young Children Under the With Child Support Formula
(3) Step-Parent Cases, and What Formula Should Be Applied
(4) Amount and Duration in Shorter Marriages Under the Without Child Support Formula, Especially Where the Recipient Has Little or No Income
(5) Duration in Medium-Length Marriages Under the Without Child Support Formula
D. A Review of the Case Law: The Highlights
The case law under the Advisory Guidelines is burgeoning. Since our last comprehensive review of the case law in our “20 Months Later” paper of October 5, 2006, there have been 120 new cases discussing the Guidelines. This brings the total number of cases to 290 as of April 18, 2007. New cases are now appearing at a rate of 5 or 6 a week—not a surprise given that, as a result of strong endorsements by the Court of Appeal, the Guidelines are now referred to in virtually every spousal support decision in British Columbia.
Case summaries can be found in the appendices to this paper. Appendix I lists all appellate decisions since the release of the Draft Proposal in January 2005. Appendix II is a comprehensive list of the new decisions (since October 5, 2006) organized according to level of court (trial or appellate), date of release and the applicable formula (with or without child support). Summaries of the cases decided prior to Oct. 5, 2006 may be found in the appendices of our “20 Months Later” paper which can be found on the SSAG web site at:
English: http://www.law.utoronto.ca/faculty/rogerson/ssag.html
French: http://www.law.utoronto.ca/faculty/rogerson/ssag_fr.html
Appendix III is a list of the new cases by province.
Watch for new cases in our case law updates, which are typically compiled on a monthly or bi-monthly basis and posted on QuickLaw, WestlaweCARSWELL, the CBA National Family Law Section site, Judicom for judges and the SSAG web site at the University of Toronto Faculty of Law.
The 290 Guidelines cases now include decisions from every province and territory. British Columbia has clearly generated the highest number of decisions (105), far surpassing the other provinces. Ontario comes in second (64). A significant number of cases have also come from Alberta (32) and Nova Scotia (27). In their brief lifetime the Advisory Guidelines have been considered by four provincial courts of appeal. The 290 cases include 14 appellate level decisions: ten from the British Columbia Court of Appeal, two from the New Brunswick Court of Appeal, and one each from the Nova Scotia and Quebec Courts of Appeal. The Advisory Guidelines have received strong endorsement from the British Columbia and New Brunswick Courts of Appeal and have been referred to with approval by the Nova Scotia Court of Appeal. They have, however, received at best a lukewarm reception from the Quebec Court of Appeal. Below we will discuss some of the more significant appellate and trial level decisions
Not all of cases we have collected are consistent with the Advisory Guidelines. The criteria for inclusion in our list is simply that the Advisory Guidelines have been referred to or considered. Our list includes a small number of decisions which have been very critical of the Advisory Guidelines and their usefulness: see, for example, the decisions of Justice Trussler in V.S. v. A.K., [2005] A.J. No. 1357, 2005 ABQB 754 (Alta.Q.B), Justice Julien in D.S. c. M.S., [2006] J.Q. no. 506, 2006 QCCS 334 (C.S) and Justice Campbell in Vanderlinden v. Vanderlinden, [2007] N.S.J. No. 107, 2007 NSSC 80. [The criticisms of Justice Julien were subsequently echoed at the appellate level by the Quebec Court of Appeal in G.V. v. C.G., [2006] J.Q. no. 5231, discussed in more detail below. See our “20 Months Later” update for an extended analysis of the concerns that have been raised about the legitimacy and usefulness of the Guidelines.] The list also includes a number of cases where the Advisory Guidelines, and more specifically the ranges generated by the formulas, were considered, but the result in the case was not consistent with those ranges. Overall, the results in approximately 68% of the cases are consistent with the formula ranges for amount. (This percentage includes not only cases where courts explicitly relied upon the Guidelines but also those where the court may have discounted the usefulness of the Guidelines or declined to follow them, but where the result nonetheless falls with the Guideline ranges. Some of these are cases where lawyers or the court had erred in stating the proper range, with the erroneous numbers reflecting inaccurate determinations of income or mistaken calculations.)
There are several reasons why the results in the cases do not always fall within the Guidelines ranges. First, some of these are cases where the Advisory Guidelines are found not applicable, either because there is a finding of no entitlement or because there is a binding spousal support agreement. Second, the monthly amount of support may have been outside the formula range, but the combination of amount and duration actually fell comfortably within the global range permitted by “restructuring”, had that concept been considered. Third, the case may have clearly fallen within one of the “exceptions” that would explain a departure from the ranges, which counsel and the court may or may not have considered. Fourth, some of the litigated cases reflect weird and wonderful facts that make them truly “atypical”.
In general, what does a review of the case law show?
· The highest level of fit with the formula ranges is found in cases with dependent children. The amounts of support ordered in these cases are fairly consistently within the ranges for amount generated by the with child support formula barring exceptional circumstances such as debt or low incomes.
· Under the with child support formula there is a subset of cases where the range includes zero, revealing limited ability to pay after child support. Courts are using these ranges to support a finding of no entitlement to spousal support.
· Under the without child support formula (i.e., in cases without dependent children) there is a very good fit between the formula ranges and the outcomes in cases of long marriages. For medium length marriages without children there is also a fairly good fit, once restructuring is taken into account (although often it is not). The cases without dependent children where the results depart from the formula ranges typically fall into clearly recognized exceptions, such as disability, significant “compensatory” claims in a short marriage, or unequal property division.
· Under both formulas we are seeing a few problems with short marriages: under the without child support formula in terms of both amount and duration, and under the with child support formula in terms of duration, although some of these cases fall into exceptions.
· Many judges (and we suspect lawyers as well) are willing to consider and apply the Advisory Guidelines ranges for amount, but ignore the Draft Proposal with respect to duration.
· The Advisory Guidelines are often understood as only the formulas, with little attention paid to the important issues that come before and after the formulas, such as entitlement, restructuring, and exceptions. Often missing as well is an analysis of the factors that determine where to set amount (and if relevant duration) within the range. But this will change with time and increased experience with the Guidelines, as shown by the increasingly sophisticated understanding and application of the Guidelines in B.C.
· In those provinces where there is strong appellate endorsement of the Advisory Guidelines—British Columbia and New Brunswick—and hence frequent use of the Guidelines as a benchmark in spousal support decisions at the trial level, there has been a noticeable impact on the quality of the judicial reasons. Contrary to some initial concerns, the reasons are generally more extensive. There is much more discussion of the basis of entitlement and, particularly if a decision is made to depart from the formula ranges, much more extensive discussion of the application of the Divorce Act factors and objectives to the facts of the particular case than in decisions that do not rely upon the Guidelines.
Now for the highlights of the case law, beginning with the appellate decisions [which are also summarized in Appendix I].
(1) British Columbia Court of Appeal
The single most important decision to date remains that of the British Columbia Court of Appeal in Yemchuk v. Yemchuk, [2005] B.C.J. No. 1748, released in August of 2005, which endorsed the Advisory Guidelines as a “useful tool” in determining the amount and duration of spousal support. Yemchuk also clarified the courtroom status of the Advisory Guidelines as neither law nor evidence, but as part of legal argument and reasoning—something like a compilation of precedent. As Prowse J.A. stated:
They [the Advisory Guidelines] do not operate to displace the courts’ reliance on decided authorities (to the extent that relevant authorities are forthcoming) but to supplement them. In that regard, they do not constitute evidence, but are properly considered as part of counsels’ submissions.
The Yemchuk case is also a good example of several important issues that arise under the Advisory Guidelines. The case involved the determination of the quantum of support on a slightly unusual set of facts. The Yemchuks had been married for 35 years, had one grown child, the husband was 63 years old, and the wife 61. The retired husband received pension income of $37,600 and sought spousal support from his employed wife, who earned $75,000. The trial judge found no entitlement. The Court of Appeal reversed and found entitlement on both compensatory and non-compensatory grounds. The husband had taken early retirement from his job in order to accommodate his wife’s employment transfer to Winnipeg. Yemchuk nicely illustrates the need to engage in a thorough analysis of entitlement as a threshold issue before any consideration of the Advisory Guidelines. The analysis of entitlement is important not only as a threshold matter to determine if any spousal support will be paid, but also in shaping the exercise of discretion under the various steps of the Advisory Guidelines, such as determining placement within the range and exceptions. Mr. Yemchuk only asked for support until his wife retired and their pensions were divided.
Prowse J.A. used the without child support formula range of $1,190 to $1,580 per month, in deciding to order $1,100 per month to Mr. Yemchuk. The Court explicitly discussed placement with the range: the lower end of the range was chosen to adjust for the wife’s employment expenses and deductions. The Court of Appeal stated that the Advisory Guidelines “are intended to reflect the current law rather than to change it”, “to build upon the law as it exists”. The Court described “the move away from a budget-laden analysis” as “appealing”.
Since Yemchuk, the B.C. Court of Appeal has considered the Advisory Guidelines in nine other decisions. The most important of these is the July 2006 decision in Redpath v. Redpath, [2006] B.C.J. No. 1550, 2006 BCCA 338. The Court incorporated the Guidelines ranges into the standard of appellate review and ruled that the trial judge had erred in ordering an amount of spousal support much lower than the Guidelines range under the with child support formula.
There were difficult property and income issues in Redpath, as the husband owned and operated a Granville Island bakery business. The couple had been married for 18 years and they had five children ranging in age from 8 to 18. The oldest lived with the father, the next oldest with the mother, and the other three children split their time equally between the two homes. The husband’s income was fixed at $260,000 per year, and the wife had no income, after having been home with the children during the marriage. In this split/shared custody arrangement, the trial judge ordered child support of $4,000 monthly (the straight table amount would have been $4,296 for four children). Spousal support was $3,500 per month, to be reviewed in three years.
The trial judge erred, claimed the wife on appeal, by not referring to the Advisory Guidelines in his reasons. Justice Newbury clearly ruled that this was not an error: “I do not read Yemchuk as indicating that the Guidelines must as a matter of law be used by a judge in determining support.” Second, argued the wife, the trial judge had overemphasized self-sufficiency, after a long, affluent and traditional marriage, a point that seemed to be accepted on appeal. The Court was then faced with the deferential standard of appellate review in support cases set out by the Supreme Court of Canada in Hickey v. Hickey, [1999] 2 S.C.R. 518, a standard which would bar appeal courts from intervening simply because they would have “balanced the factors differently”. The next paragraph (para. 42), in which the court addresses the impact of the Guidelines on the standard of appellate review deserves quotation,:
Cases such as Hickey, however, were decided prior to the introduction of the Advisory Guidelines. Now that they are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention. In the case at bar, I find that although the trial judge obviously considered the appropriate factors and did not misapprehend the evidence, the figure of $3,500 per month reached by him is simply too low in light of the Guidelines range of $4,542 and $5,510 per month.
Spousal support was increased to $5,000 per month, to be reviewed in five years.
Some have argued that the ruling in Redpath has somehow made the Advisory Guidelines “more binding” or more strongly presumptive than in Yemchuk. It was argued in one subsequent case, successfully, that Redpath required trial judges to bring their spousal support awards within the formula ranges apart from “exceptional circumstances”: Ladd v. Ladd, [2006] B.C.J. No. 1930, 2006 BCSC 1280 (Master Taylor). Both of these interpretations of Redpath seriously overstate the decision’s effect, largely by misunderstanding the concept of “standard of appellate review”. The standard of appellate review is a method for defining the kinds of cases where an appeal court may, not must, intervene, to correct the trial result. If the determination of the amount and duration of spousal support is utterly discretionary, then it is very difficult for an appeal court to articulate the limits of the range of acceptable trial results and hence the deferential approach of Hickey (an approach which was also applied to child support appeals before 1997). In Redpath the Court of Appeal is simply recognizing that the Advisory Guidelines now offer some bench marks for the range of acceptable trial results, making it possible to justify appellate intervention when trial decisions fall substantially outside those benchmarks.
The subsequent appeal case of Stein v. Stein, [2006] B.C.J. No. 2020, 2006 BCCA 391, supports this less rigid “standard of appellate review”. This is another with child support case, where the trial judge ordered spousal support of $2,500 per month for 3 ½ years duration. The Guidelines range was $3,920 to $4,883 per month. Once again, the trial judge had overemphasized self-sufficiency to the exclusion of other considerations. The support ordered left “a large gap” between the spouses and was “considerably less than is adequate to meet the objectives of s. 15.2 of the Divorce Act”. An amount of $4,200 monthly was substituted. Further, the time limit was “too severe” and the support was to be reviewable before termination, depending upon the wife’s ability to find remunerative employment.
A recent decision of significance is MacEachern v. MacEachern, [2006] B.C.J. No. 2917, 2006 BCCA 508, where the Court affirmed Redpath in over-turning another trial order for a low amount and short duration after a long marriage. To address the wife’s failure to make sufficient efforts towards self-sufficiency, Justice Prowse imputed a full-time income to the wife and then used the low end of the without child support formula range. Given the length of the marriage, the order was made indefinite rather than time-limited.
Of the other six decisions of the B. C. Court of Appeal, three involved a relatively straightforward application of the Guidelines and will simply be noted briefly:
- In Tedham v. Tedham, [2005] B.C.J. No. 2186, which followed shortly after Yemchuk, the Court of Appeal relied upon the Guidelines to overturn the three year time limit that the trial judge had imposed on a support order following a 16-year traditional marriage and also to adjust the quantum of the award. The amount of the award was set slightly lower than the range because of the reapportionment of matrimonial property in the wife’s favour.
- In Kopelow v. Warkentin, [2005] B.C.J. No. 2412 the range under the with child support formula was considered by the Court of Appeal in determining the appropriate support award in the context of a 13 year relationship with two children. In light of that award, the Court went on to assess the fairness of a marriage agreement leaving most of the property with the husband.