Spousal Support Advisory Guidelines:
A Draft
Proposal
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In this chapter we deal with the preliminary question that many will be
asking: Are spousal support guidelines that utilize mathematical formulas
based on income sharing a good idea? We review the advantages and
disadvantages of spousal support guidelines focussing on the particular
scheme of informal, voluntary and advisory guidelines we are proposing. To
illustrate their potential usefulness, we also sketch how these advisory
guidelines might work in practice.
As noted earlier, in Canadian family law, if you mention guidelines
most people think of the Federal Child Support Guidelines. They are
not guidelines at all—they are really rules. Our proposed advisory
guidelines are true guidelines that we have tried to distinguish
from the Federal Child Support Guidelines by adding the descriptor
advisory. Not legislated, but informal guides for lawyers and judges. Not
binding but adopted voluntarily because of their usefulness as a tool in
determining support. Even then, only advisory, a starting point for
negotiation and adjudication. Dealing only with amount and duration, not
entitlement. Constructed around two different formulas applicable to
different marital situations and each offering a range of possible results
rather than dictating a specific outcome. Containing broad exceptions that
are not exhaustive of the grounds for departure.
Most of the advantages of guidelines are the usual arguments in favour
of less discretion in family law generally. If rules are found at one end
of the decision-making spectrum and discretion at the other, the current
law of spousal support, after Bracklow, would be located very close
to the discretion end. Advisory guidelines of the kind we are proposing
would move the law back towards the middle ground between these two
extremes.
We turn first to the advantages of spousal support advisory
guidelines:
(1) To provide a starting point for negotiations and
decisions. At their best the guidelines will be loosely presumptive, a
starting point from which parties will have to give reasons for any
departure. The proposed advisory guidelines itemize a series of exceptions
that will constrain and rationalize departures from the basic ranges. At
present the starting point for spousal support is zero for many claimants.
To justify support claimants must then construct individual budgets
demonstrating need. As has been the case with child support guidelines,
spousal support advisory guidelines will establish a starting point other
than zero, assuming entitlement has been established. Guidelines will be
most helpful in the typical or common cases that are usually resolved in
negotiations.
(2) To reduce conflict and to encourage settlement. All
other financial matters on family dissolution are now governed by
rules—property division, pensions, child support. Spousal support is the
last remaining pool of unfettered discretion. It is also typically the
last financial issue to be resolved. Spousal support thus becomes the
flashpoint for unhappiness with all the other financial rules, as well as
for any remaining bitterness between spouses. Guidelines can limit the
range of results and constrain the issues and information required,
thereby encouraging settlement and damping down some of the conflict
between the parties. Any reduction in conflict in family law, especially
where children are involved, must be treated as an advantage.
(3) To reduce the costs and improve the efficiency of the
process. In financial matters, it is ultimately dollars weighed
against dollars, i.e. the cost of legal fees and disbursements weighed
against the money gained or lost in support or property. Advisory
guidelines can provide a starting point from which the parties can each
decide whether further negotiation or litigation to push to the limits of
the ranges, or beyond, is warranted. Further, published guidelines are
even more important where one or both parties are unrepresented.
(4) To avoid budgets and to simplify the process. Under the
current discretionary regime, expense budgets are required. Much time and
trouble is taken, in disclosure and discovery, to particularize
expenses—past, present and proposed—with the process often of dubious
value in the end. Because guidelines are based on income sharing, there is
no need to construct individual budgets. Less information is required and
the process is simplified considerably.
(5) To provide a basic structure for further judicial
elaboration. Advisory guidelines may prove to speed up, or perhaps
more accurately, to kick start, the normal process of legal development in
an area of judicial discretion. Under the current discretionary law, that
process has nearly ground to a halt. Guidelines could give basic structure
and shape to the law, with room left for lawyers and courts to adjust,
modify, identify possible new exceptions, etc. By their very existence,
guidelines create pressure to give reasons for any departures in
negotiations or decisions.
(6) To create consistency and legitimacy. Advisory
guidelines should create greater consistency in outcomes as well as more
open explanations of how those outcomes were reached. In doing so, over
time, the amounts and duration of spousal support under the advisory
guidelines can develop a legitimacy of their own, as has been the case
with child support amounts. Eventually, the outcomes generated by the
advisory guidelines will come to be seen as appropriate for many payors
and recipients.
Next, we turn to the disadvantages of guidelines, as compared to
the current discretionary regime. In assessing these disadvantages, we
stress again that it is important to remember the nature of these specific
advisory guidelines. There is a tendency for critics to assume guidelines
will operate like rules, for example, to foreclose arguments based upon
the facts of a particular case.
(1) Too rigid. Guidelines may be seen to deny individual
justice, as their starting premise is average justice, generating
reasonable results across a range of typical cases. An individual spouse
may be denied a meaningful opportunity to argue why his or her case is
unique or exceptional.
(2) Spousal support is too complicated. Many think spousal
support is just too complicated for any formulaic approach. There are too
many legal factors to balance, too many marital facts to be proved, and
too many exceptions—marital fact situations that are just too diverse.
Implicit in this view is the assumption that there are very few typical or
standard fact patterns in spousal support, so few that it is not worth
even developing guidelines for those typical fact patterns. Also implicit
in this criticism is often an assumption that guidelines will be built
around one big formula for all marriages.
(3) Discretion allows intuitive reasoning. Some argue that
spousal support is a residual remedy; the last financial remedy that can
be used flexibly to accomplish global justice in family matters. On this
view, there are many factors at work, often intuitively, in reaching a
just result, a result that is sometimes hard to explain.
(4) Regional variations too great. There are clearly local
and regional variations in the amount and duration of spousal support.
Some suggest that such variations are so great that any national
guidelines would be of limited usefulness.
(5) Litigation will be foreclosed. For those who wish to
settle, there is no question that guidelines will assist the negotiation
process. But what if a party doesn't want to settle but wants to litigate?
What if judges turn these guidelines into rules foreclosing arguments in
court? That is a risk with any guidelines.
Many of these disadvantages depend upon the structure and operation of
the specific set of guidelines involved. In constructing these advisory
guidelines we have been conscious of many of the potential disadvantages
of guidelines and have tried to address them. The advisory guidelines that
we propose involve more than one formula, ranges for amount and duration,
and exceptions and other features that keep them in the middle of the
rules-vs.-discretion spectrum.
In our view, given the current state of spousal support law, the
advantages of advisory guidelines significantly outweigh the
disadvantages. In fact, without such guidelines, it may be impossible to
move the law forward at all, based on the experience since
Bracklow. That has also been the general response of all the groups
of lawyers and judges with whom we have met so far. At the same time, all
wanted to see the proposed advisory guidelines—and, more importantly,
their outcomes in particular cases—before giving their support to any move
to spousal support guidelines.
Suppose we did have spousal support advisory guidelines of the kind we
propose. How might these advisory guidelines work in practice? Perhaps the
best and most practical recent example would be the sample child support
tables included in the Federal-Provincial-Territorial Family Law
Committee’s 1995 Report. Those tables had no legal force, but nonetheless
were frequently cited and argued in negotiations and hearings. Or,
remember the way that the Federal Child Support Guidelines were
used in child support cases under provincial family law where those
Guidelines had not yet been adopted as a matter of law.
The proposed advisory guidelines will not be legally binding, operating
more like persuasive law reform. Initially the advisory guidelines might
simply serve as another tool in determining spousal support, a litmus test
for support outcomes determined by more traditional methods, another
source of arguments in negotiation and adjudication. Over time, as they
prove their usefulness, they may become an accepted starting point from
which parties will have to give reasons for any departure.
In negotiations, if the advisory guidelines were to suggest a range of
$1,000 to $1,500 per month for spousal support, a spouse seeking to have
support fixed within that range would argue that the advisory guidelines
ought to be used since his or her case is typical. The spouse suggesting
an amount outside that range, whether higher or lower, would presumably
take the position that his or her case falls within an exception or
warrants a departure from the guidelines or even that the guidelines’
numbers are just wrong. If both parties are prepared to work within that
range, then the usual arguments would be made about why the amount should
be fixed at the higher or lower end of that range.
In settlement conferences, the parties might repeat these arguments or
the judge might ask the parties whether they have considered the advisory
guidelines. The judge might want to know why one or the other party took
the view that this case fell outside the range.
Finally, in hearings or trials, the parties might make the same
arguments and be faced with the same questions from the Bench.
Undoubtedly, different judges will treat the advisory guidelines with
varying degrees of practical force, with some applying them more
rigorously and others using them more loosely. For the latter, the
guidelines will be just another tool, used to test a result obtained by a
more conventional needs-and-means analysis of budgets. But some judges
might start from the advisory guidelines, resorting to budgets and other
individual financial data only to fine-tune the guideline numbers.
As you work your way through this document, consider the facts of
recent cases that you might have negotiated, litigated, mediated or
decided, and see how the ranges for amount and duration under these
advisory guidelines compare to the actual outcomes in those cases. Only by
comparing outcomes will it be possible to assess fairly the advantages and
disadvantages of this particular set of spousal support advisory
guidelines.
