Spousal Support Advisory Guidelines:
A Draft
Proposal
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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:
| 15.2(4) |
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:
| 15.2(5) |
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.
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.
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.
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.
