THE ADVISORY GUIDELINES 17 MONTHS LATER:

CASES, CRITICISMS AND RESPONSES, REVISIONS

Rollie Thompson and Carol Rogerson

A.  Response to the Guidelines

It has been well over a year since the Draft Proposal for Spousal Support Advisory Guidelines was released at the end of January 2005. There have been many developments since then. For starters, the Draft Proposal has already achieved one of it goals: the rekindling of serious debate about the law of spousal support.

Awareness of the Advisory Guidelines is steadily increasing among lawyers, judges, and the public at large. Over 50,000 copies of the Draft Proposal were downloaded from the federal Justice web site in the first year. Since the release of the Draft Proposal we have traveled across the country talking to groups of lawyers and judges to provide information about the contents of the Draft Proposal, to clear up misunderstandings and answer questions, and to solicit responses.

There are now over 140 judicial decisions from across the country in which the Advisory Guidelines have been cited and considered. Included in this collection are strong endorsements of the Advisory Guidelines by two appeal courts--the British Columbia and New Brunswick Courts of Appeal. In its ground-breaking decision in Yemchuk v. Yemchuk, [2005] B.C.J. No. 1748, 2005 BCCA 406, [2005] B.C.J. No. 1748, 2005 BCCA 406, released in late August of 2005, the B.C. Court of Appeal approved of the Advisory Guidelines “as a useful tool to assist judges in assessing the quantum and duration of spousal support”.

But decided cases are only the tip of the iceberg, as few spousal support cases go to trial. Even more significantly, we have learned in our travels across the country that the Advisory Guidelines are being widely used in discussions with clients, in negotiations with other lawyers, and in settlement conferences. The development of computer software to perform the calculations under the formulas has facilitated the use of the Advisory Guidelines by lawyers.

We have accomplished what we hoped for in the period since the release of the Draft Proposal. We are now at a point where there is sufficient familiarity and experience with the Advisory Guidelines that we can move into the next phase of the project—one of seeking informed feedback in a structured way with a view to making revisions to the Draft Proposal. We expect to release a “final” version of the Advisory Guidelines in the fall of 2007.

We have drafted a new document to structure that feedback process— “Issues for Discussion:  Revising the Spousal Support Advisory Guidelines”, what we call the  “Issues Paper”. A draft of  the “Issues Paper” is being released at the National Family Law Program in Kananasksis in July 2006. The “Issues Paper” draws together many of our reflections on the experience with the Advisory Guidelines to date and should be read in conjunction with this update paper.

On the basis of the responses we have had to date, we can say that, in general, the Advisory Guidelines have had a very warm reception from lawyers, mediators 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”.

B.  Criticisms of the Guidelines

The Advisory Guidelines have been criticized. It is important to distinguish different kinds of criticisms.

Some criticisms are quickly dealt with: they are based on misunderstandings about the Draft Proposal and quickly disappear with a more accurate understanding of the scheme. Much of our time in presentations to lawyers and judges is still spent on correcting misunderstandings and pointing out misapplications of the Advisory Guidelines. Other criticisms do flag problems and concerns with specific parts of Draft Proposal that will be very helpful as we look to revisions and improvements to the Advisory Guidelines over the coming year.

These sorts of criticisms will not be dealt with here. The misunderstandings of the Draft Proposal and the issues that have emerged for possible revision are discussed in detail in the “Issues Paper” and we refer you there.

            There have also been more fundamental criticisms leading some to reject the Advisory Guidelines outright. Some critics remain fundamentally opposed to the concept of any “guidelines” for spousal support, viewing the nature of the decision-making in spousal support cases as necessarily discretionary and individualized. Other critics are troubled by the informal, advisory status of the guidelines, seeing them as an illegitimate attempt to change the law outside of the legislative process. These criticisms have found judicial expression; see, for example, the decision of Justice Trussler in V.S. v. A.K., [2005] A.J. No. 1357, 2005 ABQB 754  (Alta.Q.B) and that of Justice Julien in D.S. c. M.S., [2006] J.Q. no. 506, 2006 QCCS 334 (C.S).[1] The criticisms voiced by Justice Julien were echoed at the appellate level by Quebec Court of Appeal in its recent (June 2006) decision in G.V. v. C.G., [2006] J.Q. no. 5231 (Que. C.A.).

            These decisions do not, however, represent the dominant view of the Advisory Guidelines that has emerged as the proposed Guidelines have become better understood. Even the Quebec Court of Appeal judgment in G.V. v. C.G., for example, can be read not as an outright rejection of the Advisory Guidelines but rather as a determination that they were misapplied by the trial judge on the facts of the case—that they were not used in the way the B.C. Court of Appeal used them in Yemchuk. The Quebec Court of Appeal did not disagree with Yemchuk, but merely distinguished it on the basis that Yemchuk did not endorse an “automatic” [translation] application of the Advisory Guidelines by a trial judge.

            It is important, nonetheless, to briefly respond to the two main criticisms which have been leveled against the Advisory Guidelines: their rigidity and their illegitimacy.

(a)        Too Rigid: The “Cookie-Cutter” Approach to Spousal Support

In V.S. v. A.K. Justice Trussler chooses the image of the “cookie cutter” to convey her concern about the Advisory Guidelines being “too rigid”:

The Guidelines are a cause for concern. There is no doubt that they are useful for a judge who does not wish to make a thorough and careful analysis of each case and wants a quick answer. However, it is not the role of judges to opt out for an easy answer. Rather judges are bound by the Divorce Act and the case law which require judges to do individual justice in each case and not look for a “cookie cutter” answer.

She rejects the “cookie cutter” approach in favour of one based upon “individual justice”:

The stated purpose of the Guidelines is to bring more certainty and predictability to the determination of spousal support. As a result individual justice is sacrificed for consistency. Every case is different on its facts. There are often many variables. Flexibility and discretion are needed for individual circumstances.

In the same vein, in G.V. v. C.G., the Quebec Court of Appeal describes Justice Julien’s concerns about the Advisory Guidelines as substituting “recipes” [translation] and “mathematical formulas” [translation] for the difficult analysis required by the Divorce Act and the Supreme Court of Canada. Reference is made to Justice L’Heureux-Dubé’s comments in Moge describing the “complex and … difficult analysis” required in spousal support determinations and her insistence that “[t]here are no easy recipes, nor are there neat compartments on which to rely”.

Criticisms of the Advisory Guidelines as “too rigid” often assume a more rigid scheme than the one we have actually proposed. There is a tendency, on the part of some, to lump all schemes of spousal support guidelines together, without attention to the scheme of advisory guidelines set out in the Draft Proposal. As well, to the extent that the criticisms are directed to the specific scheme set out in the Draft Proposal, they focus upon the formulas to the exclusion of the rest of the Advisory Guidelines.

These criticisms fail to recognize that there are critical steps in applying the Advisory Guidelines before the formulas can be applied:  application, entitlement, determination of income, ceilings and floors. And there are critical steps after: location within the ranges, restructuring, exceptions, variation and review. By these steps, there remains room for the exercise of judgment on the facts of an individual case, facts other than those built into the formulas.

   Criticisms of the Advisory Guidelines as “too rigid” may also embody a fear that they will be applied in a rigid and inflexible fashion, whatever the intentions of the authors. Nothing in the case law or experience so far suggests that judges are applying the Advisory Guidelines in a rigid fashion. Lawyers who come to court armed only with the ranges generated by the formulas, expecting that the Advisory Guidelines will be used in this fashion, are at serious risk of having their arguments ignored.

Those who oppose any form of guidelines for spousal support and who stress the unique nature of every case ignore the fact that there are many typical cases with very similar facts. They also undervalue the importance of 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 consistency for its own sake. It’s about a fundamental principle of law: equal treatment, the similar treatment of similar cases. These formulas generate outcomes across a wide range of cases in a consistent, principled fashion, serving as a healthy check upon one’s “gut feeling” or budget-based result.

(b)       An Illegitimate Change in the Law: Inconsistent with the Divorce Act and its Language

            Criticisms of the Advisory Guidelines as “too rigid” are often woven together with the argument that any guidelines are inconsistent with the discretionary approach mandated by the Divorce Act which requires consideration of numerous factors and objectives. And, so the argument goes, the Divorce Act is “the law”, in contrast to the Advisory Guidelines which are not. As Justice Trussler put it in V.S. v. A.K.:

The provisions of the Divorce Act as interpreted by the Supreme Court of Canada are the law in this country with respect to spousal support. The Spousal Support Advisory Guidelines, January 2005, are the work of two university professors … assisted by a small committee. Those with strong views to the contrary were not involved, nor was there widespread discussion of the guidelines prior to their publication. They have not been enacted by the Parliament of Canada or any Provincial Legislature nor are they the subject of any governmental regulation.

This criticism presents the Advisory Guidelines as a new scheme for determining spousal support that is inconsistent with the Divorce Act and its language. It is true that the formulas at the core of the Advisory Guidelines scheme can easily be taken, at first glance, as an entirely new scheme of income-sharing that has been superimposed on the Divorce Act. But an understanding of the intentions informing the project and the way in which the Advisory Guidelines were developed counters this first impression.

            The Advisory Guidelines were intended to reflect current law, not to change it. The formulas were developed to embody, or act as “proxy measures” of, the principles and factors which structure the current law of spousal support. 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. 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). 

The formula ranges are intended to capture the dominant ranges of support outcomes under the current law, those clusters you can find in the cases. They are not, contrary to what some believe, just “averages” of all the spousal support cases decided out there. Given the wild scatter of outcomes, that would not be helpful or instructive.

Judgment had to be exercised by us to identify the dominant patterns in the current law. Negotiated settlements don’t always track the decided cases and here we had the benefit of the expert advice of the Advisory Working Group on Family Law. Some cases contain exceptional facts, that would take them out of any formula. We had to classify categories of cases, starting with the big divide in the case law between cases with and without dependent children. In some sub-sets of cases, we had to identify emerging trends in the law, e.g., short marriages with young children. The formulas are the product of a comprehensive process of review and testing before the release of the Draft Proposal by the federal Department of Justice.

The British Columbia Court of Appeal in Yemchuk described the Advisory Guidelines in terms similar to a compilation of precedent:

It should also be stressed that the Advisory Guidelines are intended to reflect the current law, rather than to change it. They were drafted by the authors after extensive analyses of the authorities regarding spousal support across the country, particularly the Moge and Bracklow decisions and those following thereafter. … While decisions can undoubtedly be found in which the result would not accord with the Advisory Guidelines, I am satisfied that their intention and general effect is to build upon the law as it exists, rather than to present an entirely new approach to the issue of spousal support… They do not operate to displace the courts' reliance on decided authorities (to the extent that relevant authorities are forthcoming) but to supplement them.

Finally, the formulas are not the Guidelines, a point which brings us again to the previous criticism. Using the exceptions, both those identified in the Draft Proposal and those which are driven by the facts of atypical cases, it is possible to depart from the outcome suggested by the formulas if it would be at odds with the objectives of the Divorce Act. Indeed, reasoned explanations of why the outcomes under the formulas are at odds with the Divorce Act will serve to stimulate a renewed focus on the legislation and its objectives.

We also need to recognize that some who criticize the Advisory Guidelines as being inconsistent with the current law simply don’t like the current state of spousal support law. They may, for example prefer a stricter compensatory approach, as if Bracklow never happened, or a pre-Moge approach that placed heavy emphasis on achieving a clean break. The open-ended discretion under the current law allows every lawyer and every judge to insert his or her personal theory of spousal support into the amount and duration of that support. Guidelines, even Advisory Guidelines, serve to reveal and hence constrain these outcomes at odds with the principles and dominant patterns of the current law.

(c)        Too Little Guidance

            Before we leave the criticisms of the Advisory Guidelines, we should briefly mention one that comes from the opposite end of the spectrum. While some are concerned that the Advisory Guidelines will convert the determination of spousal support into a mechanistic exercise leading to unfair results on the facts of particular cases, others have been disappointed that the Advisory Guidelines do not go far enough in providing guidance.

Some criticize the project for the amount of discretion that still remains. Others also criticize the Advisory Guidelines for not providing “principled” answers to many of the “hard questions” in spousal support law. Some of the “hard questions” identified are: entitlement, how to determine the appropriate level of self-sufficiency in a particular case, the impact of post-separation increases in the payor’s income, and the impact of remarriage and second families. Again, this is not a reform exercise. The Advisory 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 have to be decided by the courts in the absence of specific legislation.

            A related concern is that the ranges under the Advisory Guidelines are too wide, leaving too much room for discretion. But again, the ranges were built to reflect current practice and to accommodate provincial and regional variations in support outcomes.

Changes in practice over time—the development of more consensus on hard issues and more consistency in outcomes—may be reflected in revisions to the Advisory Guidelines over time.

C.  The Courtroom Status of the Guidelines?

            Many judicial decisions have considered the Advisory Guidelines. What is their status in the courtroom? The Advisory Guidelines are not “law” and will not be legislated. But neither are they “evidence” or “expert evidence” and there is no need to “prove” the document.

The Draft Proposal is really part of legal argument and reasoning. The Draft Proposal can be cited like any other article, text or government document. This approach has been adopted by the B.C. Court of Appeal in the Yemchuk case and by Justice Martinson in W. v. W., [2005] B.C.J. No. 1481, 2005 BCSC 1010 (B.C.S.C.). As Justice Prowse stated in Yemchuk: 

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.

            For the advocate, the Advisory Guidelines build upon the existing use of software calculations of net income and support scenarios, already presented by lawyers and accepted by judges. The Guidelines’ ranges can best be presented as part of the brief or argument: first you argue the statute and broad principles, then a few similar cases, then the usual budget, expense and ability to pay arguments, capped off by a presentation of these ranges. The ranges can be argued to reflect the dominant ranges of the existing case law on amount and duration, as explained above. The facts of the individual case, analyzed in light of the Divorce Act objectives and factors, should be used to make arguments about placement with the range and exceptions.

The need for lawyers to do more than bring the Guideline numbers to court was brought home in Morash v. Morash, [2005] S.J. No. 618, 2005 SKQB 411 (Sask.Q.B.) in the colorful comments of Justice Wilkinson:

While [the Advisory Guidelines] have variously been referred to as a useful tool, a cross-check, a barometer, or measuring stick, what they are not is an encouragement to avoid the factual and legal analysis of each case within the framework of the Divorce Act's spousal support objectives. … If I were informed that fast-flowing rivers in Canada can range in depth from two to twelve feet, it would not tempt me to wade into unknown waters armed simply with that knowledge. Having a range of spousal support obligations advocated by the Advisory Guidelines, without in-depth information about the marriage, provides useful information but no inducement to act upon it.

For the judge, the Advisory Guidelines are part of legal reasoning and the Draft Proposal can be used as one more piece of useful information in the determination of the amount and duration of spousal support. The Advisory Guidelines have been variously described in the cases as a “cross-check”, a “check”, a “litmus test”, a “bench mark”, a “useful tool”, a “starting point”.

D.  A Review of the Case Law: The Highlights

            As of June 20, 2006 there were 138 judicial decisions in which the Advisory Guidelines have been considered. These cases are summarized in the three appendices to this paper. Cases continue to appear at the rate of 2 or 3 a week.

Appendix I is a comprehensive list organizing the cases according to level of court (trial or appellate), date of release and the applicable formula (with or without child support). Appendix II is a comprehensive list that organizes the cases by province. Appendix III is a selective list of cases organized by issue.

Watch for new cases in our case law updates, which are typically revised on a monthly basis and posted on QuickLaw, WestlaweCARSWELL, the CBA National Family Law Section site, Judicom for judges and (soon) the University of Toronto Faculty of Law website.

            There are now decisions considering the Advisory Guidelines from every province. Ontario has generated the highest number of decisions (41), with British Columbia a close second (38). A significant number of cases have also come from Alberta (14), Newfoundland and Labrador (12) and Nova Scotia (12). The cases include not only trial decisions, but also six appellate level decisions: four from the British Columbia Court of Appeal, and one from each of the New Brunswick and Quebec Courts of Appeal. Below we will discuss some of the more important decisions

Not all of 138 decisions we have listed 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. As we noted above, this list includes a small number of decisions which have been very critical of the Advisory 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 70% of the cases are consistent with the formula ranges for amount. 

There are several reasons why the results in the cases do not always fall within the Guidelines ranges. First, in some cases that rejected the formula range, the order itself actually fell within the range, as the lawyers or the court had erred in stating the proper range. The erroneous numbers reflected inaccurate determinations of income or mistaken calculations. 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 clearly fell within one of the “exceptions” that would explain a departure from the ranges, but neither counsel nor court appear to have considered the exceptions. Fourth, some of the litigated cases reflect weird and wonderful facts that make them truly “atypical”. That’s why these cases end up before the courts.

            In general, what does a review of the case law show?

·         Under the without child support formula, we see 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).

·         In cases with dependent children, the amounts of child support ordered are fairly consistently within the ranges for amount generated by the with child support barring exceptional circumstances such as debt or low incomes.

·         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 tend to be 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.

Now for the highlights of the case law, beginning with the appellate decisions.

(a) 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, 2005 BCCA 406, released in August of 2005, which, as noted above, endorsed the Advisory Guidelines as a “useful tool” in determining the amount and duration of spousal suppor. The case is also a good example of several important issues that arise under the Advisory Guidelines. In Yemchuk the B.C. Court of Appeal ended up deciding 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”.

            In an October decision, the B.C. Court of Appeal again considered the Advisory Guidelines, in Tedham v. Tedham, [2005] B.C.J. No. 2186, 2005 BCCA 502, overturning the trial judge’s diminishing and terminating spousal support order ($6,000 for a year, then $4,000, then $2,000, then zero). The Court of Appeal maintained the trial judge’s initial amount of $6,000 a month, after considering the without child support formula range. The Court removed the three-year time limit too, given the 16-year traditional marriage. The Court did not mention that Ms. Tedham’s age and years of marriage came very close to the “rule of 65” that would generate an indefinite order under the Guidelines formula for duration. Nor did the Court consider the possible application of the “custodial payor” formula, which could have been applied as the father was supporting the children directly (but the parties had agreed to “deem” the children, 20 and 21, independent).

            There have been two subsequent decisions in which the B.C. Court of Appeal considered the Advisory Guidelines. In Kopelow v. Warkentin,[2005] B.C.J. No. 2412, 2005 BCCA 551(C.A.) (Smith J.A.) the Guidelines were considered in the context of a challenge to a marriage agreement which left the husband with most of the property. The case involved a 13 year relationship with two children; the wife, who was 55, was earning $30,000 year, while the husband was earning $177,000. The wife was found to be entitled to spousal support, and the range under the with child support formula ($3,037-$4,015) was considered by the Court of Appeal in determining that $3,500 per month was the appropriate amount. With spousal support in this amount, the Court of Appeal found that the marriage agreement was not unfair.

Finally in Toth v. Kun, [2006] B.C.J. No. 739, 2006 BCCA 173 (C.A.) the Guidelines were considered in the context of an application by the husband to vary support because of his retirement and the drop in his income (from $70,000 to $42,000). The case involved a 10 year marriage with no children; the wife was over 20 years younger than the husband, but she had health problems. The trial judge reduced support from $2,400 to $1,500 per month on an indefinite basis. The Court of Appeal found that to be too onerous, and instead ordered time-limited step-down support: $1,200/mo. to Sept. 2006, then $1,000/mo. to Sept. 2009, with the result that support would be paid for a total duration of 6 ½ years. The amount of support was set higher than the range suggested by the Guidelines under the without child support formula ($525-$700 for 5 to 10 years) because of the wife’s health and limited language skills. The Court did not, however, consider restructuring, which would have shown their award to be within the global range generated by the formula. In the end, Toth offers a nice example of a result consistent with the time limits suggested by the without child support formula in medium duration marriages. 

(b) New Brunswick Court of Appeal

In April of this year the New Brunswick Court of Appeal became the second appellate court to approve of the Advisory Guidelines with its decision in S.C. v. J.C., [2006] N.B.J. No. 186, 2006 NBCA 46 (N.B.C.A.). In this case the trial judge had actually considered the Advisory Guidelines in determining the amount of support in the context of a 25 year traditional marriage. The husband was an army officer earning $100,000 a year. The factual wrinkle in the case was that the wife, who was 40 years old at the time of separation, had, in the 5 years since separation, retrained and found contract employment earning $46,764 year, thus raising the “hard” issue of when a former spouse has become “self-sufficient”. After considering the Guidelines range of $1,625 - $2,208; a month, the trial judge ordered spousal support of $1,625 a month for 5 years, rejecting the wife’s claim for an amount higher in the range ($1,800) and for an indefinite duration.

Justice Larlee, writing for the Court of Appeal, dismissed the wife’s appeal. She approved of the Advisory Guidelines in the following terms:

The guidelines have been referred to in many ways: a check, a cross-check, a litmus test, a useful tool and a starting point. But it is my view that whichever term one likes to employ, their use, through the available software, will help in the long run to bring consistency and predictability to spousal support awards. Not only will they foster settlement, they will also allow spouses to anticipate their support responsibilities at the time of separation.

The Court adopted the reasoning in Yemchuk on the issue of the Guidelines’ consistency with current law.

On the issue of the time-limit imposed by the trial judge, Justice Larlee recognized that there is almost a presumption of indefinite support in a long traditional marriage and that a review was generally favoured over a time limit in such cases. However, she relied on deference to the trial judge’s determination that a time limit was warranted on the facts, noting that the wife was young, had no dependents, was capable and had been quickly able to reintegrate into the work force, had found steady employment, and that 5 years was a longer term than that imposed in some cases in which time limits had been upheld in long marriages.  The appropriateness of the time limit on the facts of this case is obviously open to debate--touching on the “hard” issue in the current law of the meaning of “self-sufficiency”. However, the result in the case does bring home the point that even after a long traditional marriage there may be a finding at some point down the road that the recipient spouse has become self-sufficient and that entitlement to support has disappeared. Even an indefinite order does not mean permanent support without reduction or even termination at some point in the future.

(c) Quebec Court of Appeal

In G.V. v. C.G., [2006] J.Q. no. 5231 (Que. C.A.), released in June of 2006, the Quebec Court of Appeal became the third appellate court to consider the Advisory Guidelines. As with S.C. v. J.C., this case also involved an appeal of a decision in which the trial judge had used the Guidelines. The case involved a 32-year marriage with three children, two of whom were independent and the youngest of whom resided with the husband. The wife, who was 55, was earning $50,000 while the husband earned $227,000. The wife paid child support of $15,948 per year. The trial judge applied the Advisory Guidelines; using the range of $4,500 to $6,000 per month under the custodial payor formula, she ordered support of $4,500 per month, at the low end of the range, on an indefinite basis.

            The Court of Appeal allowed the husband’s appeal and reduced spousal support to $2,705 per month after engaging in a detailed analysis of the wife’s budget. The trial judge was found to have erred in relying as she did upon the Advisory Guidelines rather than engaging in a detailed individual analysis.

The decision contains no ruling in principle rejecting the use of the Adivsory Guidelines, with Justice Forget stating that [TRANSLATION] « the dossier as it is and the brief pleadings of counsel on this aspect do not permit us, in my opinion, to pronounce a judgment of principle upon the utilisation of the Advisory Guidelines. »The Court did refer to the criticisms of the Guidelines contained in the judgments of Justices Julien and Gendreau (discussed above.)[2] and the “important” concerns raised by Justice Julien about « recipes »and formulas being used to avoid the difficult individual analysis required by the Divorce Act.  The Quebec Court did not disagree with Yemchuk, but emphasized that the B.C. appeal court had not endorsed an “automatic” application of the Guidelines without an individual analysis.

We are left with a judgment that echoes the standard criticisms of the Advisory  Guidelines , but does not reject the Guidelines outright.  Trial judges should not default to the Guidelines, suggests the Quebec appeal court, but must look at all the facts of the particular case.

 (d) Trial Judgments

Here we will identify a few particularly helpful decisions under each of the two formulas.

(i) The Without Child Support Formula

One case under the without child support formula which should definitely be read as a

general primer on the Guidelines is McCulloch v. Bawtinheimer, [2006] A.J. No. 361,

2006 ABQB 232 (Q.B.)  (Sullivan J.) The case provides an excellent overview of the

advisory Guidelines and a detailed explanation of the various steps in the scheme that

need to be considered both before and after the formulas. The result in the case, which

involved a six year relationship between “adult interdependent partners” as defined under

provincial legislation, was consistent with the without child support formula after and

explicit use of restructuring and findings that the compensatory and debt payment

exceptions were inapplicable.

Four other decisions provide excellent discussions of different aspects of the without child support formula:  Carr v. Carr, [2005] A.J. No. 391, 2005 ABQB 265 (Q.B.) (Veit J.) (interim support, Guidelines used to divide resources after long marriage); Modry v. Modry, [2005] A.J. No. 442, 2005 ABQB 262 (Q.B.) (Germain J.) (income of $1.26 million above ceiling, discussion of Guidelines); and Maitland v. Maitland, [2005] O.J. No. 2252  (S.C.J.) (Pardu J.) (consideration of low income issues where husband makes $28,000 and wife disabled); A.M.R. v. B.E.R., [2005] P.E.I.J. No. 83, 2005 PESCTD 62 (S.C.T.D.)(Matheson C.J.T.D.)(wife earns less than floor, no ability to pay support to husband).

Three other recent cases of interest deserve mention: Law v. Law, [2005] A.J. No. 1315, 2005 ABQB 723  (Q.B.) (Clackson J.)(support to continue after long marriage at 45 per cent of gross income difference until payor’s retirement); and Hesketh v. Hesketh, [2005] O.J. No. 4053 (S.C.J.)(Heeney J.)(amount slightly above range ordered where husband cohabiting); Locke v. Ledrew,[2006] A.J. No. 759 (Veit J.)[3] (consideration of effect of repartnering by both parties).

(ii) The With Child Support Formula

Three leading cases should also be noted under the with child support formula. First would be W. v. W., [2005] B.C.J. No. 1481, 2005 BCSC 1010 (S.C.), a decision of Justice Martinson which includes an extensive and illuminating discussion of the Guidelines. This decision was quoted and approved by the B.C. Court of Appeal in Yemchuk. Another careful decision is that of Justice Handrigan in Fewer v. Fewer,  [2005] N.J. No. 303, 2005 NLTD 163  (N.L.S.C.), who used the ChildView software to obtain the range in a Newfoundland case with lower incomes. In Kerr v. Kerr, [2005] O.J. No. 1966 (S.C.J.), Blishen J. of the Ontario Superior Court of Justice used this formula to decide temporary spousal support, in a case with 5 children and some s. 7 expenses.

Finally Puddifant v. Puddifant, [2005] N.S.J. No. 558, 2005 NSSC 340 (S.C.F.D.) (Gass J.) involved an application of the custodial payor formula in the context of a 12 year marriage where the wife, the non-custodial payor, suffered from mental illness and was in receipt of disability payments. The husband brought a variation application 6 years after the separation. The result in the case--an order that support be paid for a further 3 years-- was consistent with the time limits generated by the custodial formula. The case also offers a good discussion of the disability exception.

Appendix I

Case Summaries

[Updated to June 20, 2006]

A.        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]

Kopelow v. Warkentin,[2005] B.C.J. No. 2412, 2005 BCCA 551(C.A.) (Smith J.A.) Married 12 years (plus one year cohab), 2 children 15 and 13, with wife

Wife earns $30,000, now 55 (49 at separation), husband earns $177,000

Wife challenging marriage agreement property division, 78 per cent to husband

Child support $1,995, wife also entitled to spousal support

Range $3,037-$4,015, $3,500/mo. ordered

With these support amounts, marriage agreement not unfair

Toth v. Kun, [2006] B.C.J. No. 739, 2006 BCCA 173 (C.A.) (Hall J.A.)

Married 10 years, no children, husband 64, wife 41

Interim support $2,300/mo., varied to $2,400 in April 2003

Wife health problems, but will recover, poor English

Husband earned $70,000, but now retired, only $42,000

At trial: support varied to $1,500, indefinite

On appeal: too onerous, so time limited, step-down

$1,200/mo. to Sept. 2006, then $1,000/mo. to Sept. 2009, support paid 6 ½ years

Range $525-$700, 5 to 10 years [within global range on restructuring]

S.C. v. J.C., [2006] N.B.J. No. 186, 2006 NBCA 46 (N.B.C.A.) (Larlee J.A.)

Married 25 years, two adult children, wife 42 (40 separation), husband 45, traditional marriage

Husband army officer, earns $100,000

Wife working in Kingston, Ont., on contract with Health Ministry, earns $46,764; interim support $1,850

Trial judge ordered $1,625/mo., using Advisory Guidelines, for 5 years [range was $1,625 - $2,208; wife wanted $1,800]

Wife appealed amount at low end of range, sought indefinite duration, and questioned trial judge’s determination of her income

Appeal dismissed, Guidelines approved, help to bring consistency and predictability

Almost a presumption of indefinite support in long traditional marriage; review generally favoured over time limit in such cases

But deference to trial judge: wife young, no dependents, capable, steady employment

Wife quickly able to reintegrate into work force, 5 years a longer term

G.V. v. C.G., [2006] J.Q. no. 5231 (Que. C.A.) (Forget J.C.A.)

Married 32 years, 3 children, one (18) now with husband, custodial payor

Wife 55, earning $50,000, husband earns $227,000

Child support $15,948, grossed-up to $33,000

Trial judge applied Advisory Guidelines: range $4,500 to $6,000; low end of range ordered, $4,500 indefinite

Appeal allowed; spousal support reduced to $2,705 per month based upon budgetary analysis

Trial judge erred by not engaging in a detailed individual analysis

Court states that [TRANSLATION] « the dossier as it is and the brief pleadings of counsel on this aspect do not permit us, in my opinion, to pronounce a judgment of principle upon the utilisation of the Advisory Guidelines. »

Court refers to important criticisms of Advisory Guidelines found in judgments of Justices Julien and Gendreau [see cases below] and concerns about « recipes »and formulas being used to avoid the difficult individual analysis required.

B.        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

A.M.R. v. B.E.R., [2005] P.E.I.J. No. 83, 2005 PESCTD 62 (S.C.T.D.)(Matheson C.J.T.D.)

Together 11 years (married 4), no children, husband seeks interim spousal support

Husband receives WCB $11,858 non-taxable, grossed up to $13,525

Wife earns $18,557, also paying family debts

Below “floor” of $20,000, no ability to pay, no support

(Range by formula: $69-$92)

McCulloch v. Bawtinheimer, [2006] A.J. No. 361, 2006 ABQB 232 (Q.B.)

 (Sullivan J.)

Together 6 years, “adult interdependent partners”