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Spousal Support Advisory Guidelines:
A Draft Proposal

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1.1 The Legislative Framework

Spousal support, when sought in the context of a divorce, is governed by the federal Divorce Act. There are also provincial and territorial laws that govern spousal support outside the divorce context, applying to unmarried couples and to married couples who have separated but are not applying for a divorce. The statutory provisions are an important starting point in understanding the law around spousal support; they provide the framework within which the proposed advisory guidelines will operate. The proposed advisory guidelines do nothing to alter that legislative framework.

Federal and provincial/territorial spousal support legislation in Canada tends to take the form of relatively open-ended provisions incorporating a variety of factors and objectives. Much room is left for judicial discretion in the interpretation and application of the legislation. Judicial interpretations in turn guide lawyers and mediators advising clients negotiating spousal support settlements.

The specific focus of this project has been on developing informal guidelines to assist in the determination of the amount and duration of spousal support under the Divorce Act. The current Divorce Act, enacted in 1985, attempts to provide guidance for spousal support determinations by setting out, in s. 15.2 (6), four objectives for spousal support:

15.2(6) An order … that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8) [i.e. through child support];
(c) relieve any economic hardship of the spouses arising from the break-down of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

In addition, s. 15.2 (4) lists certain factors to be taken into account in making support orders for a spouse:


In making an order … the court shall take into consideration the condition, means, needs and other circumstances of each spouse including
(a) the length of time the spouses cohabited;
(b) the functions performed by the spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of the spouse or child.

Finally, s. 15.2 (5) is more specific, indicating one factor that may not be taken into account—spousal misconduct:


In making an order [for spousal support or an interim order] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Provincial/territorial support law is governed by distinctive statutory regimes. However, in practice there is much overlap between federal and provincial/territorial support laws. The leading Supreme Court of Canada decisions on spousal support, Moge and Bracklow, which will be discussed in more detail below, articulated a broad conceptual framework for spousal support that has been relied upon in decisions under both provincial/territorial and federal legislation.Indeed Bracklow, which combined claims under both the Divorce Act and provincial legislation, made no real distinction between the two.

Given this overlap, it is possible that these advisory guidelines might be used under provincial/territorial support legislation. Any such use would have to take account of the distinctive features of these statutes. In Chapter 4, below, we discuss in more detail some of the specific issues that would arise in the application of the advisory guidelines to support determinations under provincial/territorial spousal support laws. It is important to keep in mind when reading this document that the advisory guidelines were developed for use under the federal Divorce Act.

1.2 Judicial Interpretation[3]

In two important decisions, Moge v. Moge[4] in 1992 and Bracklow v. Bracklow,[5] in 1999, the Supreme Court of Canada has attempted to clarify the general principles that structure our law of spousal support. These decisions, together with the legislation, constitute the current legal framework for spousal support. Our proposed advisory guidelines do nothing to displace these decisions, but are rather an attempt to develop formulas to better implement the principles these decisions recognize.

The combined effect of these two decisions is a very broad basis for spousal support under the Divorce Act. Both Moge and Bracklow can be seen as responses to, and rejections of, the very limited view of spousal support that had emerged from the Supreme Court of Canada’s 1987 Pelech trilogy[6] which had emphasized the importance of finality and promoting a clean break between divorced spouses. In the wake of Pelech, spousal support came to be viewed as a transitional or rehabilitative remedy. Time-limited spousal support orders came to be the norm, even in cases of long, traditional marriages.

In the ground-breaking Moge decision in 1992, the Supreme Court of Canada clearly rejected the Pelech trilogy and the clean-break model of spousal support. The Court emphasized that all four support objectives in the 1985 Divorce Act had to be given weight and that the clean-break model of spousal support unduly emphasized only one of those objectives—the promotion of spousal self-sufficiency after divorce—at the expense of all the others. Former spouses were obligated to make reasonable efforts to maximize their earning capacity and contribute to their own support but the Court recognized that some spouses, despite their best efforts, would not be able to become self-sufficient. In the Court’s view, the clean-break model went too far in deeming spouses to be self-sufficient when they were not. In Moge the Court endorsed an expansive compensatory basis for spousal support, portraying its purpose as the equitable distribution between the spouses of the economic consequences of the marriage—both its economic advantages and disadvantages. While the Court recognized that many different circumstances could give rise to compensatory claims, the decision focused on the most common situation—that where a spouse has sacrificed labour force participation to care for children, both during the marriage and after marriage breakdown. Under the compensatory approach of Moge, spousal support came to be understood primarily as a form of compensation for the loss of economic opportunity—or in the language of the Divorce Act, the economic disadvantage—resulting from the roles adopted during the marriage.

The compensatory principle from Moge continues to play a significant role in structuring our law of spousal support. However, when lower courts attempted to implement the compensatory principle, which the Supreme Court of Canada had presented at a high level of generality, they ran into some difficulties on both the practical and theoretical fronts.

On the practical front, the compensatory principle is difficult to implement. Establishing a support claim requires, in principle, individualized evidence of earning capacity loss. As the Supreme Court of Canada itself acknowledged in Moge, providing this form of expert evidence can be costly. Evidence of earning capacity loss can also be difficult to obtain and somewhat hypothetical, particularly in cases of long marriages where the spouse claiming spousal support had no established career before assuming the role of homemaker. Difficult questions of causation can also arise as to why a spouse remained out of the labour force or chose lowly paid employment. On a practical level, effective implementation of the compensatory principle requires the development of proxy measures of economic loss that will inevitably involve some sacrifice of accuracy and theoretical purity.

After Moge, Canadian courts showed no enthusiasm for reliance upon expert economic evidence documenting loss of earning capacity.[7] Instead, “need”—the traditional conceptual anchor of spousal support—became a convenient proxy measure of economic disadvantage. A spouse in economic need was presumed to be suffering economic disadvantage as a result of the marriage; conversely, a spouse not in need was presumed not to have suffered any economic disadvantage as a result of the marriage. The use of need and standard of living as proxy measures for loss of opportunity was expressly endorsed by Bastarache J. A. in Ross v. Ross, a New Brunswick case involving a long traditional marriage:

It is in cases where it is not possible to determine the extent of the economic loss of the disadvantaged spouse that the Court will consider need and standard of living as the primary criteria, together with the ability to pay of the other spouse.[8]

At least in longer marriages, need came to be measured against the marital standard of living, a measure suggested by the Supreme Court of Canada itself in Moge:

As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.[9]

The rule that emerged in many lower court decisions was that the goal of spousal support following longer marriages was to provide the support claimant with a reasonable standard of living judged in light of the marital standard of living. In some cases, as in Ross, the principle for long marriages has been expressed as providing similar lifestyles or roughly equivalent standards of living for each of the spouses.

On the theoretical front, the post-Moge case law also revealed concerns with the limitations of a pure compensatory analysis that would confine the basis for spousal support to economic loss caused by the roles adopted during the marriage. Some judges shifted the compensatory focus to the economic advantages of the marriage in the form of the earning capacity the payor spouse was able to maintain and enhance. Other judges found the compensatory framework itself too restrictive. Compensatory theories narrowed the basis for entitlement. This was something many judges resisted. Some judges read the Divorce Act spousal support objectives more broadly, focussing on the section referring to the relief of economic hardship caused by the marriage breakdown. Others read Moge as a general directive to ameliorate the post-divorce impoverishment of former spouses. The most serious limitations of a compensatory analysis arose in cases involving ill or disabled spouses, whose economic needs were not related to marital roles and who could not claim spousal support based on losses or gains in earning capacity during the marriage.

The Supreme Court of Canada directly addressed these limitations of the compensatory principle in its 1999 decision in Bracklow. In that case the Court ruled that there is also a non-compensatory basis for spousal support under the Divorce Act based on “need alone.” Thus a former spouse has an obligation to pay spousal support if the other spouse is experiencing economic need at the point of marriage breakdown, even when that need does not arise from the roles adopted during the marriage. The Court based this obligation on a view of marriage as a relationship involving mutual obligations and complex interdependencies that may be difficult to unravel when the marriage breaks down. The Court also spoke of marriage as involving the assumption of basic social obligations, reflecting the view that primary responsibility for support of a needy partner rests upon the family rather than the state. The Court went on to say that the extent of a former spouse’s obligation to meet his or her former partner’s post-divorce needs would be dependent upon many factors, including the length of the relationship, the way the parties had structured their relationship, ability to pay, and the re-partnering or remarriage of the former spouses.

Bracklow clearly expanded the basis of the spousal support obligation under the Divorce Act to include need as well as compensation. However, in the course of doing so the decision increased the level of uncertainty about the nature and extent of the spousal support obligation, well beyond what had existed after Moge. The Supreme Court of Canada failed to provide a definition of “need,” leaving open the question of whether it meant an inability to provide a basic standard of living or whether it should be assessed in the context of the marital standard of living. After Bracklow, many argued that any spouse who experienced a significant decline in standard of living after marriage breakdown was entitled to spousal support.

Even more significantly, Bracklow emphasized the highly discretionary, individualized nature of spousal support decisions. The Court was clear that the Divorce Act endorses no single theory of spousal support and must retain flexibility to allow judges to respond appropriately to the diverse forms that marital relationships can take. The Court presented spousal support determinations as first and foremost exercises of discretion by trial judges who were required to “balance” the multiple support objectives and factors under the Divorce Act and apply them in the context of the facts of particular cases. One of the main messages of Bracklow was that there were no rules in spousal support.

1.3 The Problem of Spousal Support and the Need for Guidelines

The current culture of spousal support is one that emphasizes individualized decision making and an absence of rules. Since the Bracklow decision, multiple theories of spousal support compete with each other while, on the ground, spousal support cases are negotiated and argued under an amorphous needs-and-means framework dominated by budgets. “Need” means many different things to different people and many different theories of spousal support can be couched in the language of need. The guidelines project springs from the growing concern expressed by lawyers and judges that the highly discretionary nature of the current law of spousal support has created an unacceptable degree of uncertainty and unpredictability.

Similar fact situations can generate a wide variation in results. Individual judges are provided with little concrete guidance in determining spousal support outcomes and their subjective perceptions of fair outcomes play a large role in determining the spousal support ultimately ordered. Appeals may often be of little help because appeal courts frequently dispose of appeals with little explanation, deferring to trial judges on issues of quantum and duration. Lawyers in turn have difficulty predicting outcomes, thus impeding their ability to advise clients and to engage in cost-effective settlement negotiations.

And for those without legal representation or in weak bargaining positions, support claims may simply not be pursued. Despite a very broad basis for entitlement under the current law, many spouses do not claim spousal support, being unwilling to engage in the difficult and costly process required.

More generally, the uncertainty and unpredictability that pervades the law of spousal support is undermining the legitimacy of the spousal support obligation. The widely differing understandings of the nature of the spousal support obligation generate concerns about unfair outcomes at both ends of the spectrum. In some cases awards are perceived as too low, in others unjustifiably high.

The proposed advisory guidelines are a response to these concerns. They have been developed for the purpose of bringing more certainty and predictability to spousal support determinations. They incorporate the basic principles of compensation and need that the Supreme Court of Canada has identified as the bases for spousal support under the Divorce Act. The advisory guidelines attempt to provide a more structured way of implementing those principles through formulas based on income sharing, i.e. formulas based on sharing specified percentages of spousal incomes.

1.4 Why Guidelines Now?

Spousal support guidelines rely upon mathematical formulas that determine spousal support as a percentage of spousal incomes. When spousal support guidelines were considered in the past, the idea was rejected as both impossible and undesirable. In our view, the time is now ripe for reconsideration. What has changed?

First and foremost, the law of spousal support has become more unstructured, more discretionary and more uncertain over time, particularly since 1999 in the wake of Bracklow. After Moge and prior to Bracklow, there had been some hope that a principled approach to spousal support was developing through the case law. Now it has become clear that the normal process of judicial development has effectively come to a halt. In this situation, spouses, lawyers and judges are attracted by the greater certainty and predictability that come with guidelines, even guidelines that are not perfect.

Second, since 1997 our experience with child support guidelines, both at the federal and provincial/territorial levels, has changed the legal culture. Their formulaic approach has accustomed us to the systemic advantages of average justice rather than individualized justice, to determining support without budgets and to the concept of income sharing after divorce.

Third, spousal support advisory guidelines are not simply an abstract concept any more. Some American jurisdictions have successfully experimented with such guidelines for more than a decade, as explained in the Background Paper that was prepared for this project.[10] Most recently, the influential American Law Institute (ALI) has recommended a formulaic approach to spousal support as part of its comprehensive rethinking of the law of family dissolution, a process begun in the 1990s and culminating in the Institute’s final report in 2002.[11] Some American jurisdictions have begun to implement the ALI guidelines. Greater experience with guidelines is yielding more sophisticated models.

Finally, we can see the beginnings of formulaic approaches to the determination of spousal support in the current law. With the greater prevalence of computer software, especially since the Federal Child Support Guidelines came into effect in 1997, lawyers and judges can readily have available information on net disposable incomes or monthly cash flow, tax calculations and household standards of living. Armed with this information, some courts have looked to income sharing and standards of living, rather than budgets, to resolve spousal support issues. (A list of many of these cases can be found in Appendix A.)

All of these changes make spouses, lawyers, mediators and judges more interested in spousal support guidelines. In weighing the advantages and disadvantages of such guidelines, more see the balance tipping in favour of some type of spousal support advisory guidelines.

In Chapter 3 we will discuss in more detail the advantages and disadvantages of guidelines, focussing on the particular set of advisory guidelines being proposed here. Before that discussion can take place, however, it is important to have a better sense of our particular proposal—one of informal, voluntary advisory guidelines. Thus we move next, in Chapter 2, to a more detailed description of the guidelines project, including a discussion of the nature of the guidelines being developed and the process that has been used to develop them.