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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.

3.1 The Advantages and Disadvantages of Guidelines

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.

3.2 How These Advisory Guidelines Might Work in Practice

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.