Spousal Support Advisory Guidelines:
A Draft
Proposal
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There are many preconceptions about what spousal support guidelines are
and how they will work. Any talk of spousal support guidelines immediately
brings to mind the Federal Child Support Guidelines. As we
emphasized in the introduction, this comparison should be resisted. The
proposed advisory guidelines we have developed are very different.
Unlike the Federal Child Support Guidelines, these advisory
guidelines do not involve formal legislative reform. They are not
being legislated by the federal government. They are intended to be
informal guidelines that will operate on an advisory basis
only, within the existing legislative framework.
We know that this concept of informal guidelines is one that many have
difficulty understanding initially. Yet think of the early days of the
Federal Child Support Guidelines before they were formally enacted.
Many judges and lawyers used the draft proposed tables informally to
assist in the determination of child support. Think also of the normal
process of legal development and the ways that various presumptions can
develop over time to structure judicial discretion. Such presumptions were
starting to develop in the post-Moge law of spousal support, but
since Bracklow, that process has broken down. This
guidelines project can be thought of as an attempt to facilitate or speed
up the normal process of legal development by providing a broad structure
that can then be adjusted over time as it is tested by individual
cases.
The inspiration for the process chosen for the development of these
advisory guidelines came from the experience of many of the American
jurisdictions that have adopted spousal support guidelines. In the
American context, spousal support guidelines have generally been the
product of bench and bar committees of local bar associations. They were
created with the intention of reflecting local practice and providing a
more certain framework to guide settlement negotiations. While some of the
American guidelines subsequently evolved into legislation, at the initial
stages they were informal.
A similar process was adopted for the development and implementation of
these advisory guidelines. They have been created through a process that
involves working with judges, lawyers and mediators who have expertise in
family law. The goal of the process has been to articulate informal
guidelines based on emerging patterns embedded in current practice. With
the release of this Draft Proposal, the next stage in the development
process will begin, one involving a wider circle of family law
experts.
The advisory guidelines will not have the force of law. In terms of
their implementation, they will be voluntarily adopted by lawyers and
judges on a local basis and will acquire force based on their usefulness.
Only if parties, lawyers and judges find the support ranges helpful and
reasonable will the guidelines have any impact on the ground. The wider
their use, the more the advisory guidelines can develop a loose,
presumptive effect, providing a starting point that would require spouses
to make arguments about why another outcome is appropriate in their case.
In some local areas, bench and bar may decide to follow the guidelines in
a more organized fashion.
Government involvement in this process is limited. The federal
Department of Justice is supporting the development of the advisory
guidelines by providing financial support, communicating information on
the project, participating in the discussions with the working group of
family law experts, and keeping provincial and territorial governments
informed. The project has no provincial/territorial sanction.
We have called this process for creating and implementing the advisory
guidelines one of working “from the ground up”, in contrast to the “from
the top down” process of formal legislative reform. The process, described
in more detail below, is a long one involving many stages and different
forms of feedback and implementation. But before we get to that, we would
like to say a bit more about the general nature of this project and some
of the challenges it raises.
2.2.1 Theory and practice
As stated in the introduction, this project is not directed at a
theoretical re-ordering of the law of spousal support. Its aims are
practical rather than theoretical—to provide a practical tool to assist
family lawyers, mediators and judges who are confronted daily with the
dilemma of determining appropriate levels of spousal support. As
Bracklow has made clear, the Divorce Act does not mandate
any one model of spousal support. We kept this in mind in constructing
these guidelines. Reflecting current practice means reflecting a wide
range of competing views of spousal support. No one theory or model or
ideology or formula can be used. The formulas, described in more detail
below, incorporate elements of different theories. In addition, the
exceptions recognize alternate or subsidiary models of spousal support.
There is no theoretical purity in the guidelines we have constructed—they
are the product of much compromise.
But increased consistency and predictability—the goals of the
project—do require structure, even if it does not come from theoretical
purity. The project is premised on the view that patterns and structure
are beginning to emerge in the law, at least in a range of typical
cases—some unspoken guidelines.[12] But in the current culture of spousal support,
these are often not discussed or articulated or openly acknowledged within
the family law system. This project has attempted to build upon and
facilitate those developments.
2.2.2 Reflecting current practice,
changing current practice
Admittedly, there is a central tension in the project between
reflecting practice and changing practice. As informal rules of practice
without the force of law, the guidelines must reflect current practice and
cannot stray too far from existing results over all. That said, there is
also much in current practice that is inconsistent, arbitrary and hard to
explain. These advisory guidelines were developed because of their
potential to constrain some of these current practices. In building upon
current practice the project draws on best practices or emerging trends.
The proposed guidelines incorporate and reflect much of the current
practice of spousal support while at the same time seeking greater
consistency and logic in the results. Inevitably, even if there are some
changes to current practice under these guidelines, the changes must be
incremental.
The proposed advisory guidelines are not intended to raise the
current levels of spousal support over the broad run of cases.
Inevitably, greater consistency under the advisory guidelines will mean
that some spouses will see higher support awards and others will see lower
awards. The guidelines should logically lead to more frequent spousal
support awards, as they offer default ranges and reduce the cost of
ascertaining support amounts. Some spouses who would give up on seeking
spousal support under the current costly and unpredictable discretionary
regime will obtain support under the advisory guidelines, not a bad result
in our view. But it is not the policy or intent of these guidelines to
produce bigger support amounts.
2.2.3 National guidelines and local
spousal support cultures
Early on we faced the problem of squaring national guidelines with
local and regional patterns of support. To the extent that local
variations reflect higher or lower incomes, guidelines can adjust for
that. The ranges provided by the advisory guidelines leave some scope for
adjustment towards local patterns and local conditions. There may be some
local twists that require further fine-tuning in the next phase. We also
hope that the advisory guidelines might lead to some cross-fertilisation
of ideas amongst regions, as guidelines may force reconsideration of some
local practices. During the next discussion phase, one of the challenges
will be whether local or regional variations are so significant that the
advisory guidelines must explicitly adjust further for such
variations.
The first stage of the guidelines project, which commenced in September
2001, involved the preparation of a lengthy background paper by Professor
Rogerson: Developing Spousal Support Guidelines in Canada: Beginning
the Discussion (December, 2002) (the “Background Paper”). The paper
and the project were first discussed at the National Family Law Program in
Kelowna, B.C. in July 2002, with the paper being completed in December
2002.
The paper laid the groundwork for exploring the possibility of
developing spousal support guidelines. It reviewed in detail the basic
building blocks that could be drawn upon in creating guidelines: emerging
patterns in the current law, the various theories of spousal support, as
well as various models of guidelines that are in effect or proposed in the
United States and elsewhere. The Background Paper also laid out a possible
process for the development of guidelines—one of building informal
guidelines that would reflect current practice and that would operate on
an advisory basis only within the existing legislative framework.
The Background Paper has been translated and is available on the
Department of Justice website at http://canada.justice.gc.ca/en/dept/pub/spousal/index.html
For those who want more detail about the multiple sources that have
influenced the crafting of the proposed advisory guidelines, we encourage
you to read the Background Paper.
The second stage of the project involved working with a small group of
family law experts to begin the discussion about developing spousal
support guidelines. Those discussions were supplemented by some additional
small-scale consultations with other groups of lawyers and judges. The
federal Department of Justice constituted what was initially a twelve (now
thirteen) person Advisory Working Group on Family Law composed of lawyers,
judges, and mediators from across the country. Its purpose was to advise
the Department on family law matters generally, one of which was the
guidelines project. (A list of the members of the Advisory Working Group
can be found in Appendix B.)
We had five meetings with the Advisory Working Group: the first in
Ottawa (February 2003), the second in Montreal (May 2003), the third in
Toronto (November 2003), the fourth in Ottawa (April 2004), and the fifth
in Toronto (October 2004).
The discussions within the Advisory Working Group were directed first
at determining the desirability and feasibility of developing advisory
guidelines. Initially, not every member of the Group was supportive of
spousal support advisory guidelines, but all were receptive to the general
idea. There was also agreement that there were certain patterns in spousal
support, at least at the level of outcomes and at least in certain kinds
of cases. We then began the process of trying to craft advisory
guidelines.
Given that the goal was to work from current practice, we first started
with concrete fact situations to draw out group members’ views of likely
outcomes. We identified certain categories of marriages and certain
typical fact situations within them. In reviewing the group’s responses we
identified where the answers clustered. We used the responses to develop
formulas and exceptions, which we then tested out on more fact situations.
Finally, to ensure that they were acceptable when compared to current
practice, we took the revised formulas and exceptions and demonstrated the
range of outcomes they would generate.
Given the practical nature of the project, the primary focus of the
process was on support outcomes rather than on appropriate theories of
spousal support. We are of the view that while people might often disagree
at the level of theory, there can be a fair amount of consistency in
actual award levels. We also began with the easiest categories of
marriages where patterns in the current law are the clearest and where we
expected the greatest consistency in outcomes. We began with long
marriages, then moved to short marriages without dependent children, and
then to marriages with dependent children. Lastly, we tackled the most
difficult category, medium duration marriages without dependent children,
where there is the most diversity of outcomes and the least consistency in
the current law.
This Draft Proposal draws on the discussions within the Advisory
Working Group and constitutes our attempt to crystallize the advisory
guidelines that emerged from our discussions. The drafting of this
document involved much fine-tuning and ongoing consultations with the
Advisory Working Group almost until the moment of release. As a result,
some aspects of these advisory guidelines differ from the version found
in the Sneak Preview presented at the National Family Law Program in La
Malbaie, Quebec in July 2004. These advisory guidelines are definitely
a work in progress. We could have worked longer on the Draft Proposal and
continued to perfect it, but were of the view that it was important to
begin to broaden the discussion.
You will see that we have not been able to accomplish as much in this
Draft Proposal as we had hoped at the beginning. Some issues were too
difficult and some areas of the law so uncertain that advisory guidelines
were not possible, in particular those relating to variation of spousal
support. Many compromises had to be made along the way. But we have found
what we think is sufficient consensus in a number of areas to warrant
moving ahead with the advisory guidelines.
Not every member of the Advisory Working Group will support every part
of the Draft Proposal. The Advisory Working Group essentially played a
consultative role. As directors of the project, we have had the
responsibility for making the final judgement calls. Our role has been to
find areas where there was sufficient common ground to anchor a guideline
and then to develop a workable formula or exception to capture that common
ground. We now send our best effort out for your reactions.
With the issuance of the draft proposal, the next stage of the process
begins—one of discussion and experimentation. This Draft Proposal will be
widely circulated amongst family lawyers, mediators and judges. We will be
travelling across Canada to explain and discuss the proposed advisory
guidelines and to obtain feedback. Do the proposed formulas generate
acceptable results? How might the advisory guidelines need to be
adjusted?
Although these are draft guidelines and subject to ongoing discussion
and revision, we do expect that lawyers, judges and mediators will begin
to use them. This is in fact the best way to test the advisory
guidelines—to find out if they are useful and to discover their flaws and
limitations. Lawyers, for example, may begin to use the draft advisory
guidelines to assist in structuring and guiding negotiations about spousal
support, either explicitly as a principled basis for negotiation or, more
modestly, as a litmus test of the reasonableness of offers or
counter-offers derived by budgets or other methods.
Judges may wish to use the proposed guidelines in a similar fashion.
The ranges can provide a check or litmus test to assess the positions of
the parties in settlement conferences or in argument in hearings and
trials. In this respect, the proposed advisory guidelines may serve much
like the early proposals for child support amounts, before 1997. The
advisory guidelines may also assist in adjudication, in providing one more
way of approaching the discretionary decision to be made in spousal
support cases.
We expect that there may be a number of local areas where the bench and
bar will decide to implement the advisory guidelines in a more consistent
and conscious way in order to test their usefulness. Thus lawyers and
judges may agree to use the advisory guidelines as a starting point for
cases in their area.
Over the next year or so, we expect to speak to many groups, to hear
back from those using the advisory guidelines, and to receive suggestions
for changes and improvements. We will sift through the responses and
comments to consider revisions to the proposed advisory guidelines. In Chapter 11,
the conclusion to this document, you will find details on how you can
communicate your views to us.
