THE ADVISORY GUIDELINES NINE MONTHS LATER:

CASES, CRITICISMS AND RESPONSES, REVISIONS

Rollie Thompson and Carol Rogerson

A.                  SOME CASES

1.         Appellate Decisions

Yemchuk v. Yemchuk, [2005] B.C.J. No. 1748, 2005 BCCA 406 (B.C.C.A.)(Prowse J.A.)

Married 35 years, one grown child, husband 63 at trial, wife 61.

Family assets divided equally, trial judge found no entitlement to spousal support

Entitlement found on appeal, both compensatory and non-compensatory grounds

Engineer husband retired early in 1997, as wife transferred to Manitoba in federal government

No issue as to duration, as husband only claiming support until wife retired at 65

Husband ‘s income $37,600, wife makes $75,000

Guidelines range under without child support formula: $1,190 to $1,580

Guidelines “a useful tool to assist judges”, “intended to reflect the current law” citing W. v. W.

Extensive discussion of Guidelines issues, not evidence but part of counsels’ submissions

Support fixed at $1,100, to reflect wife’s “expenses relating to employment (including clothing, transportation expenses and significant compulsory employee deductions)”

Tedham v. Tedham, [2005] B.C.J. No. 2186, 2005 BCCA 502 (B.C.C.A.)(Prowse J.A.)

Married 16 years, wife now 52 (47 at separation), husband now 47, traditional marriage

Two children, 20 and 21, “deemed independent”, direct support from husband

Wife earns $25,000 part-time retail, income imputed of $30,000

Husband estimated to earn $343,000 in computer software sales

Payment by husband of $95,850 to reapportion property

Was paying $1,589 child support and $4,000 spousal to wife

Chambers judge ordered dimishing time-limited support for 3 more years

$6,000/mo. year 1, $4,000 year 2, $2,000 year 3, then zero, to encourage self-sufficiency

No time limit, only partial compensation, indefinite order substituted, subject to

review if husband’s medical condition (legal blindness) interferes with income

Amount fixed at $6,000, Guidelines range stated as $6,300 to $8,500 for 8 to 16 years

Lower than range because of reapportionment order

(Without child support range: $6,260-$8,347, if incomes as stated)

[Custodial payor formula range (no child support from wife): $4,712-$6,283]

2.         The Without Child Support Formula

Leading Decisions

Carr v. Carr, [2005] A.J. No. 391, 2005 ABQB 265 (Alta.Q.B.)(Veit J.)

Interim spousal support, 28 year marriage, 3 adult children, wife 51

Husband makes at least $150,000, wife $9,300 disability

Without child support formula explicitly used

Range $4,397-$5,863.  $5,000 ordered.

General reference to use of guidelines as “cross-check”

Modry v. Modry, [2005] A.J. No. 442, 2005 ABQB 262 (Alta.Q.B.)(Germain J.)

Guidelines argued by wife’s lawyer, husband’s income $1,266,000

29 year marriage, 4 grown children, income imputed to wife

Discussion of guidelines, but this above $350,000 ceiling, $9,900 ordered

Maitland v. Maitland, [2005] O.J. No. 2252 (Ont.S.C.J.)(Pardu J.)

Married 29 years, 4 adult children, wife 45 at separation

Wife has health problems, can’t work, no income

Husband works as truck driver, $28,439

Interim support $1,344, husband also pays $135/mo. for wife’s health insurance

Range $889-$1185 (or $754-$1050 deducting health ins.)

Exception for payor income $20-$30,000 noted, concerns re ability to pay

Support of $700 ordered

Other Trial Decisions

Law v. Law, [2005] A.J. No. 1315, 2005 ABQB 723 (Alta.Q.B.)(Clackson J.)

Married 35 years, 2 adult children, husband 57, wife 55

Husband earns $131,000, wife $51,000

Range $2,500-$3,333 (37.5 to 50 per cent), indefinite

Order for $3,000, to cease when husband retires and pension divided

To continue at 45 per cent of gross income difference

Nasby v. Nasby, [2005] S.J. No. 619, 2005 SKQB 422 (Sask.Q.B.)(Wilkinson J.)

Married 24 years, 4 children, youngest unemployed and with mother

Wife earns $14,195 as bartender, husband earns $72,779 (est.)

2001 agreement: $669 child support, $1,331 spousal support, $2,000 “cap”

Range $1,831 to $2,491 if 2004 incomes used

Or $1,344 to $1,792 if estimated lower incomes for 2005 used

Order of $2,000 maintained on interim basis until trial

Cunningham v. Montgomery-Cunningham, [2005] O.J. No. 4297 (Ont.S.C.J.)(Fragomeni J.)

Married 22 years, 1child 20 and independent

Wife says husband’s 2004 income $347,000, income at least $139,000

Wife’s income $101,800, says husband, at least $92,200

Order of $1,500 interim, “guided by” Guidelines

[Range estimated as $1,292 to $1,733]

Morash v. Morash, [2005] S.J. No. 618, 2005 SKQB 411 (Sask.Q.B.)(Wilkinson J.)

Married 31 years, 1 child now 27

Wife homemaker, now educational assistant, earns $20,674

Husband earns $73,263, made voluntary non-deductible payments of $1,441/mo.

Range stated as $2,037 to $2,717, order for $2,250 interim

Hesketh v. Hesketh, [2005] O.J. No. 4053 (Ont.S.C.J.)(Heeney J.)

Married 17 years, wife 54 (49 at separation)

Entitled on compensatory (many moves and lost job) and non-compensatory grounds

Wife earns $13,000, working 35 hours per week

Husband earned $85,667 in 2004

Interim voluntary support of $1,500

Range $1,544 to $2,059, indefinite (rule of 65)

Husband’s new partner makes $56,000, reason to go higher than range

Order for $2,200, indefinite, plus $424/mo. for 10 years for equalization payment

Rossi v. Rossi, [2005] O.J. No. 4136 (Ont.S.C.J.)(Flynn J.)

Married plus cohabited 23 months, husband and wife both 48

Voluntary support of $5,400 total over 4 months, then $2,000 interim for 15 mos.

Wife disabled, CPP plus business $16,000

Husband earns $71,000 plus

Maximum guidelines range $224 for 23 months, or $5,152, vs. $35,400 paid

Husband paid enough, support terminated

Adams v. Adams, [2005] O.J. No. 4117 (Ont.S.C.J.)(Platana J.)

Together/married for 10 years

Husband workers compensation $28,295 tax-free

Wife accident benefits and business $11,830 tax-free

Wife seeks $299 mid-point of range $256-$341

[Range $295-$393 if incomes properly grossed up]

Guidelines rejected and lower amount of $75/mo. ordered

Zedi v. Ristic, [2005] O.J. No. 3827, 2005 ONCJ 250 (Ont.C.J.)(Spence J.)

Married 9 years, no children, wife 59 and husband 46 at separation, wife now 63

Husband earns $32,500 as machinist, but “self-employed”, so taxed on $10,000

Wife makes $10,000-$13,000 at deli

Guidelines range stated as $208-$278, “too low”, $500/mo. ordered, indefinite

(If husband’s income grossed up for tax position, range would be $367-$489)

Woodall v. Woodall, [2005] O.J. No. 3826, 2005 ONCJ 253 (Ont.C.J.)(McSorley J.)

Married 11 ½ years, wife 42 and husband 33 at separation

Wife disabled, husband paid $1,200 every 2 weeks under 2002 separation agreement

Now $1,264 with COLA plus drug coverage

Husband earned $89,500 in 2002, then $115,000 in 2004

Changed to less stressful job paying $90,700, application to vary to reduce

Husband paying unconsolidated debts, new common-law wife not working

Guideline ranges ($1,565-$2,086) no application because of agreement

No variation clause, no Miglin, no change in circumstances

Gerlitz v. Gerlitz, [2005] A.J. No. 1132, 2005 ABQB 621 (Alta.Q.B.)(Veit J.)

Interim support, adjourned to trial, Guidelines don’t apply to entitlement

Married 25 years, parented sister’s children (now grown up)

Wife teacher, earns $80,000, assets of $359,000 plus pension and RRSPs

Husband engineer earns $200,000 (closer to $80,000 at separation), assets of $251,000

M.K.M. v. T.L.M., [2005] B.C.J. No. 1956, 2005 BCSC 1040 (S.C.)(McCallum J.)

Interim support, married 8 years (plus cohabitation), no children

Husband 47, some medical problems, no income

Wife earns $54,000, range stated to be $888-$1184

Carr cited, $1,200 ordered,”at higher end”, encouraged to seek employment

Bishop v. Bishop, [2005] N.S.J. No. 324, 2005 NSSC 220 (N.S.S.C.)(LeBlanc J.)

Together 13 years, 12 married, no children, wife 47 at separation

Wife health problems, irritable bowel syndrome, depression, etc., unable to work

Husband corporal in Armed Forces, earns $57,300, cohabiting with partner and her 2 children

Range reported as $1,188-$1,584 (but actually $931-$1,241)

$1,000 per month, for 10 years (11 in total), ordered

Pearce v. Pearce, [2005] B.C.J. No. 1757, 2005 BCSC 1153 (B.C.S.C.)(Dohm J.)

Married 30 years, 4 grown children, wife homemaker, 50 at separation

Husband makes $101,000, wife earns $25,000 from own business

Variation, $500 ordered previously, on assumption husband paying $405,000 debt

Range $2,375-$3,166, used as “cross-check”

$2,000 ordered monthly, plus $65,000 retroactive lump sum

Proctor v. Proctor, [2005] B.C.J. No. 1585, 2005 BCSC 1063 (B.C.S.C.)(Wilson J.)

Married over 20 years (?), 1 child not “of marriage” in 4 mos., wife 49 at separation

Equal division of family assets, husband doctor makes $247,000

Wife no income, and no efforts

Range $6,175-$8,233 (stated to be $7,103-$9,470, higher than existing awards)

Much discussion of “income equalization”

$5,000 ordered, indefinite, review in 3 years

Crosman v. Crosman, [2005] N.B.J. No. 272, 2005 NBQB 245 (N.B.Q.B.)(Clendening J.)

Married 25 years, 2 adult children, wife 42 at separation

Husband lieutenant colonel in Armed Forces, makes $100,000

Wife working on contract $46,764, interim support $1,850

Range $1,625-$2,208, wife requested $2,800, $1,625 ordered, for 5 years

Garland v. Garland, [2005] N.J. No. 139, 2005 NLUFC 13 (Nfld.U.F.C.)(Cook J.)

Married 27 years, 2 grown children, husband $31,500, wife $12,000

Range $608-$815.  $680, indefinite, ordered.

Coolen v. Coolen, [2005] N.S.J. No. 155, 2005 NSSC 78 (N.S.S.C.)(Warner J.)

Married 25 years, review of $900 order made in 2003

Husband makes $42,400, wife $9,800 disability plus imputed employment

Both new partners, wife’s deficit $575 (sharing new home)

Range $1,018-$1,358, support reduced to $750

Romaniuk v. Romaniuk, [2005] O.J. No. 1818 (Ont.S.C.J.)(Maranger J.)

Together 9 years (married 3), wife 38 at separation, husband $72,400

Wife in school til June 2006, husband went bankrupt, left with with debt

$2,000 ordered til June 2006, then $400 til debt paid in full

Guidelines “considered”, but no details (range would have been $815-$1,086)

Kletzel v. Kletzel, [2005] S.J. No. 323, 2005 SKQB 174 (Sask.Q.B.)(Sandomirsky J.)

Married 26 years, wife 47 at separation

2002 order of $1,100, application to vary by husband

Husband’s income reduced by early retirement and new job, to $74,900

Wife’s income reduced by health problems, to $19,000

No change in spousal support, amount in range of $1,046 to $1,395

Vanderham v. Vanderham, [2005] A.J. No. 655, 2005 ABQB 351 (Alta.Q.B.)(Verville J.)

Married 30 years, 2 adult children, wife 49 at separation

Interim order by consent for $2,200 per month, then reduced to $1,100

Wife earns $33,500 as clerk

Husband’s income as heavy equipment operator fluctuates, $80,000 estimated

Guidelines “a useful tool”

Range: $1,453-$1,937.  $1450 ordered, indefinite, review in 2 years

Crisall v. Crisall, [2005] A.J. No. 675, 2005 ABQB 411 (Alta.Q.B.)(Lee J.)

Married 8 years, no children

Husband union representative, earns $93,000

Wife previously earned $36-$60,000, temporarily unemployed

Order for $1,500 per month, review in 6 months

Range stated to be $795-$1,060, but doubts about “real merit” of guidelines

Correct range $930-$1,240

Denton v. Denton, [2005] N.S.J. No. 245, 2005 NSSC 155 (N.S.S.C.)(Moir J.)

Together 23 years, 19 married, wife 55 at separation

Wife hairdresser, working part-time only $8,000, imputed $30,000 full-time

Husband works overtime, income fixed at $60,000

Range $863-$1,150

Support reduced to $750, as husband larger debt load and equalization payment

3.         The With Child Support Formula

Leading Decisions

W. v. W., [2005] B.C.J. No. 1481, 2005 BCSC 1010 (B.C.S.C.)(Martinson J.)

Together 24 years (22 married), both in 40’s, professionals, 2 children with mother

Husband makes $125,000, wife makes $56,728

Child support $1,470

Range $745-$1,585, spousal support of $1,500 ordered, indefinite

Extensive discussion of Guidelines, “consistent with the law in British Columbia”

Fewer v. Fewer,  [2005] N.J. No. 303, 2005 NLTD 163 (N.L.S.C.)(Handrigan J.)

Married 16 ½ years, wife 44 at separation, husband 38, 1 child (15) with wife

Husband carpenter earns $35,893, wife works part-time at Walmart, earns $14,031

Child support $291

Guidelines range calculated by ChildView, zero to $224

$180 ordered, considering length of marriage, wife home for marriage, income difference

Duration fixed at 16 ½ years from separation, subject to variation

Kerr v. Kerr, [2005] O.J. No. 1966 (Ont.S.C.J.)(Blishen J.)

Married 16 years, 5 children with mother, husband $95,014, wife no income

Child support $2,085, plus some s. 7 expenses

Formula range stated as $794-$1,189, temporary spousal support of $1,000 ordered.

Other Trial Decisions

V.S. v. A.K., [2005] A.J. No. 1357, 2005 ABQB 754 (Alta.Q.B.)(Trussler J.)

Married 12 years, one child age 9

Husband earns $39,012, child support $339/mo.

Wife has no income, but could earn $12,000 annually starting January 2006

Guidelines extensively criticized at paras. 17 to 25, not used

Hearing adjourned for detailed evidence of  needs, ability to pay, other factors

[Range: $706-$885 if zero income for wife, $122-$370 if $12,000]

Wittich v. Wittich, [2005] N.S.J. No. 377, 2005 NSSC 265 (S.C.F.D.)(B. MacDonald J.)

Married 10 years, wife 54 (52 at separation), one child 16 with father

Romantic relationship for 6 years before marriage, lived in same house

while wife still married to first husband

But not count as cohabitation for pension division

Wife homemaker, pension income from divided pensions of $6,540/yr.]

Husband earns $80,762 from job and pensions, promised to take care of wife

Guidelines rejected, no time limits, “significant dependency”, larger amount

Indefinite order, $2,100 per month

[Custodial payor range: for 10 years, $755-$1,007, 5 to 10 years

for 16 years, $1,208-$1,611, indefinite as rule of 65 applies, disability exception?]

Megyesi v. Megyesi, [2005] A.J. No. 1261, 2005 ABQB 706 (Alta.Q.B.)(Watson J.)

Married 13 years, wife 45 at separation, 1 child of marriage, 16, with wife

Husband’s 2 children of previous marriage now 25 and 20, wife as stepmother

Interim orders: child support $703, spousal $1,000

Wife teacher’s assistant, earns $24,000

Husband crane operator, earned $103,882 in 2004, says $92,300 in 2005

Wife sought $2,000/mo., indefinite

Time limit preferred and Guidelines considered, 8 more years to be paid (11 years in all)

At higher income, range would be $1,365 - $2,025

Order for $1,000 as income used for range too high and “other discrepancies”

Income sharing at those ranges also beyond reasonable expectations of parties

(Range at $92,300, adjusted down for his prior child support obligation, $494-$1085)

Socan v. Socan, [2005] O.J. No. 3992 (Ont.S.C.J.)(Blishen J.)

Together 16 years (married 13), 2 children 19 and 13, oldest not “child of marriage”

Child with wife, wife 45 at trial (39 at separation)

Wife cashier at Walmart, health problems, earns $20,401

Husband Canada Post, health problems, earns $44,904

Child support $387 (1), husband paid all matrimonial debts

Range $111 - $293, request for $200 by wife

$150 ordered, due to husband’s payment of debts, expenses, equalization payment

A.A. v. B.B., [2005] N.B.J. No. 340, 2005 NBQB 286 (N.B.Q.B.F.D.)(Tuck J.)

Married 23 years, 2 children 25 and 22, wife 43 at separation (50 now)

1998 separation agreement: $210 spousal, $390 child (1)

Wife disabled since 1984, arthritis, CPP disability

Child support from Sept. 2003 to Dec. 2005 graduation, table plus s. 7 expenses

Husband’s 2005 income $65,209 (3 year average), construction, $62,132 in 2004

With child support range presented as $997 - $1,357 at $62,132

(Without child support range $1,292 - $1,723 at $62,132, $1,381 - $1,841 at $65,209)

$1,200 ordered

Fancett v. Deprato, [2005] O.J. No. 3860 (Ont.S.C.J.)(MacKenzie J.)

Together 4 ½ years, 1 child 6 with wife, wife 36 at separation

Husband now disabled, off job, but no evidence, 2004 income $65,318

Child support $545, plus $332 for s. 7 expenses

Wife clerical job $12,486, now cohabiting, seeks spousal for past 18 months

Unable to use Guidelines because of changing incomes (?), $600/mo. ordered

Child and spousal support used to offset husband’s equity in home

L.A.K. v. A.A.W., [2005] A.J. No. 1140, 2005 ABQB 657 (Alta.Q.B.)(Johnstone J.)

Interim support, together 30 years, married 28 years, 2 children 18 and 15 with wife

Husband earns $92,495, no deduction for loss on hobby business

Child support $1,208 plus s. 7 expenses for tuition and books at community college

Wife earns $39,500 as clerk, works 87% due to medical problems

$1,000/mo. at “upper end” of Guidelines range (estimated at $580-$1163)

Stieda-Everitt v. Everitt, [2005] B.C.J. No. 1556, 2005 BCSC 1034 (B.C.S.C.)(Ehrcke J.)

Married 19 years, 3 children with wife

Proceeds of sale of matrimonial home reapportioned 55/45 to wife

Husband earned $68,590, now working part-time for $37,700 and pursuing pilot’s licence

Wife earns $6,000 as substitute teacher

Full income imputed to husband, child support $1,182

Range: $606-$919, $650 ordered, indefinite, review in 24 months (wife sought lower end)

Hewko v. Hewko, [2005] B.C.J. No. 1416, 2005 BCSC 904 (B.C.S.C.)(Curtis J.)

Married 21 years, children 21 and 15, with wife, wife 43 at separation

1999 settlement: child support $1,300, spousal $3,000 and $24,000 lump sum

Husband health problems, working part-time, earns $58,164 ($108,000 before)

Wife many health problems, university and teacher’s degree not reasonable plan, no income

Child support reduced to $795

Guidelines “in the range of $1,400/month” (Range by Divorcemate: $1,049-$1,287)

Spousal support of $2,000 ordered, reviewed in 18 months and $25,000 then imputed to wife

M.S. v. W.S., [2005] B.C.J. No. 1447, 2005 BCSC 939 (B.C.S.C.)(Romilly J.)

Together 15 years (married 12), wife 36 at separation

2 children, 12 and 8, younger with learning disability and in private school

Equal division of family assets

Child support $2,286 plus 80/20 split of s. 7 expenses ($25,694/year)

Husband makes $207,432 in family business

Wife returned to film school, paid by husband, could earn $30-$40,000 as animator

Guidelines “not law”, spousal support of $2,500 ordered

(Range by Divorcemate: $3,941-$4,897 if wife no income, $3,432-$4,539 if $30,000)

Pelletier v. Pelletier, [2005] N.S.J. No. 273, 2005 NSSC 178 (N.S.S.C.)(Nathanson J.)

Together 21years (married 19), wife 41 at separation

Split custody: 19 year old with wife, 17 year old with husband

Husband in Armed Forces, makes $56,000, cohabiting with partner and her 4 children

Wife personal care worker, makes $22,200

Child support:  $455 - $160 = $295, plus $2000/year for university expenses

Spousal support $300/mo., for 5 years, “generally in accord with Advisory Guidelines”

(Range by Divorcemate: $488-$834)

Dench v. Dench, [2005] O.J. No. 2646 (Ont.S.C.J.)(Heeney J.)

Married 16 years, 4 children, 1 still dependent, with wife, wife 47 at separation

Husband owns car dealership, makes $150,000

Child support $1,108

Wife’s income $51,000 ($36,000 on investments, plus $15,000 imputed minimum wage)

Range $1,597-$2,680, spousal support of $2,000 ordered

Roughly equal standards of living, wife’s lower housing costs

Anderson v. Anderson, [2005] M.J. No. 243, 2005 MBQB 133 (Man.Q.B.)(MacInnes J.)

Together 5 years (married 4), 1 child 5 years old with cerebral palsy

Husband earns $153,000 Cdn equivalent, in U.S. computer business

Child support $1,122, plus $843/year for s. 7 expenses

Range $3,732-$4,507, “simply not realistic”, uses budget analysis

Spousal support of $2,000/mo. plus taxes ordered (approx. $2,416)

Bielanski v. Bielanski, [2005] O.J. No. 2171 (Ont.S.C.J.)(Gauthier J.)

Married 14 years, 2 children, 16 and 14, with mother

Interim order: child support $1,049; spousal support $850

Husband’s income $90,900 at Inco, wife $34,500 in retail

Order for child support $1,146 and spousal support $1,000

Range $611-$1,237

Large v. Large, [2005] P.E.I.J. No. 43, 2005 PESCTD 34 (S.C.T.D.)(Mitchell C.J.P.E.I.)

Long traditional marriage, wife 55, one child in university and living at home

Income imputed to lawyer husband in Saskatchewan, $80,000

Child support $609, no s. 7 expenses, as student earned $15,000

Formula calculated by arithmetic, 43% INDI as $1,685, indefinite

Restructured to lump sum, 10 years support, discount rate, tax, to $102,100

(Range by Divorcemate: $1,891-$2,290, hybrid university formula: $1,650-$2,200)

Friess v. Friess, [2005] S.J. No. 360, 2005 SKQB 248 (Sask.Q.B.)(Sandomirsky J.)

Married 22 years, 2 children with wife 17 and 16

Husband earns $49,239 as farmer, wife earns $15,300

Child support $650

Formula calculated by arithmetic, range zero to $228, $350 ordered

(Range by Divorcemate:  zero to $295)

Simmonds v. Simmonds, [2005] N.J. No. 144, 2005 NLUFC 10 (Nfld.U.F.C.)(Handrigan J.)

Married 4 years, 2 children 10 and 3, with wife

Husband makes $83,945, wife $10,210 part-time

Child support $1,013 plus $163 for day care

Formula calculated by arithmetic, range reported as $650-$925

Spousal of $400 ordered, as requested by wife, review in October 2007

(Range by Divorcemate:  $839-$1,416)

Skipton v. Skipton, [2005] N.S.J. No. 83, 2005 NSSC 43 (N.S.S.C.)(Warner J.)

Together 9 years (married 7), one child age 8, wife 32 at separation

Husband $57,000 in military, wife $5,700 employment insurance

Both formulas applied, with and without child support, as “check”

Formula calculated by arithmetic, low end of range reported as $616.  $616 ordered.

(Range by Divorcemate:  $793-$1,133)

Anderson v. Anderson, [2005] N.S.J. No. 176, 2005 NSSC 94 (N.S.S.C.)(Warner J.)

Together 12 years (married 11), custody in dispute, 2 children placed in husband’s custody

Husband makes $50,000, wife now cohabiting and no income

Wife seeks $500 per month for 14 months as spousal support

Wife’s request less than guidelines, so support ordered as requested.

(Hybrid formula:  $554-$738, for 6-12 years)

Zelko v. Zelko, [2005] O.J. No. 653 (Ont.S.C.J.)(Cusinato J.)

Married 15 years, 2 children 14 and 12, wife 36 at separation

2001 order:  $1,031 child support, $1,500 spousal support

2 children now with father

Wife makes $14,000, i.e. child support of $211

Wife still to receive $1,500 spousal, indefinite

Discussion of guidelines, but unable to do calculations without software

(Hybrid formula:  $894-$1,193 for 7.5 to 15 years)

Araya v. Gaete, [2005] O.J. No. 704 (Ont.S.C.J.)(Young J.)

Married 23-plus years, 3 children, 1 left with wife

Husband makes $50,000, wife laid off, $10,000 imputed

No child support, shared custody agreement

Guidelines cited in discussion on entitlement

$800 interim spousal support ordered

(Range by Divorcemate:  $1,150-$1,533 indefinite)

McPhee v. McPhee, 2005 CarswellOnt 683 (Ont.S.C.J.)(Gordon J.)

Application to vary, husband’s income reduced, wife’s increased

Child support adjusted, but spousal left unchanged at $1,500 per mo.

Support still within range computed using guidelines (no details given)

B.         SOME CRITICISMS AND SOME RESPONSES

The release of the Draft Proposal has already achieved one of its goals: the rekindling of a serious debate about the law of spousal support. In general, the guidelines have had a very warm reception from lawyers and judges, as people appreciate the benefit of greater consistency and predictability. Again and again, we hear that it is helpful to have a range to know that one’s claim, offer, settlement or decision is “in the ballpark”.

Some criticisms are very specific, more in the nature of feedback about particular parts of the guidelines. These comments are very helpful, as we look to revisions and improvements to the guidelines over the coming year. Others criticize the very idea of guidelines, any guidelines, not just these guidelines, as they prefer pure case-by-case discretion. Often these criticisms assume a rigid scheme of guidelines, not the advisory guidelines we have actually published. We do not focus here upon either of these critiques.

In between are those who suggest that these particular guidelines are flawed. One of the major sources of these criticisms is Professor Jay McLeod, in his weekly newsletter. Some of the “flaws” identified by these critics flow from a misreading of the Draft Proposal. Many of the criticisms are not  fleshed out, little more than “bullets”. Below we have identified the most common “bullets”.

(1)                 “Unprincipled”

Many of the critics simply don’t like the current state of spousal support law. They prefer a stricter compensatory approach, a more “principled” approach, as if Bracklow never happened. The advisory guidelines are then criticized for not restoring this “principled” approach.

But the advisory guidelines are not a “law reform” project. It is not our task to change the broad principles of Moge and Bracklow. The law remains clear that spousal support can be found on compensatory and non-compensatory grounds. In turn, that law is reflected in the advisory guidelines on amount and duration. If the Supreme Court were to change the law, e.g. to narrow the scope of Bracklow, then the advisory guidelines would have to adjust too.

A related criticism has been that the advisory guidelines don’t provide “principled” answers to the “hard questions” in spousal support law. Again, this is not a reform exercise. The “hard questions” are often entitlement issues. The guidelines identify these hard issues and often provide some assistance in their resolution, but there is no consensus in the current law and these hard issues are to be decided by the courts.

(2)                 Not Consistent with the Legislation, or Its Language

We have summarized each formula in a phrase, one that captures the current law on amount and duration in the relevant cases: “merger over time” for the without child support formula and “parental partnership” for the with child support formula. These phrases do not represent new theories of spousal support, just shorthand labels for the existing law which is set out in more detail in Chapters 5 and 6 of the Draft Proposal. The without child support formula reflects the mix of compensatory and non-compensatory thinking found in Moge and Bracklow, which interpreted the objectives of s. 15.2(6) of the Divorce Act. The with child support formula is profoundly compensatory, reflecting the analysis of Moge, which in turn emphasized paragraphs (a) and (b) of s. 15.2(6). 

(3)                 Consistency for Consistency’s Sake

Professor McLeod refers to “the appeal to unprincipled consistency”. What comes to mind is Ralph Waldo Emerson’s famous quote:  “a foolish consistency is the hobgoblin of small minds”. In the law of spousal support, a little consistency would not be “foolish”. But this is not co