Back to Related Materials | Close Window

Spousal Support Advisory Guidelines:
A Draft Proposal

[ Previous | Table of Contents | Next ]


2.1 The Nature of the Proposed Guidelines: Informal, Voluntary and Advisory

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 The Challenges of the Project

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.

2.3 How We Got Here: The Process to Date

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

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.

2.4 The Next Stage

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.