Spousal Support Advisory Guidelines:
A Draft
Proposal
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Inevitably, the application of spousal support advisory guidelines to
divorce cases in Quebec requires some modifications. The most obvious
modifications flow from Quebec’s guidelines for the determination of child
support, which differ in important ways from the Federal Child Support
Guidelines. A few other modifications are also noted below.
The bulk of Quebec’s guidelines are found in the Regulation
Respecting the Determination of Child Support Payments, to which are
attached as schedules the child support determination form and the
table.[29] The Regulation is made under authority of
the Code of Civil Procedure and the Civil Code, both of
which also contain provisions governing the determination of child
support.[30] These provisions will be referred to here as the
child support rules. These rules apply to determine child support under
the Civil Code and under the federal Divorce Act.
For these Quebec rules to become the applicable guidelines for child
support in Quebec divorce proceedings, Quebec was designated by the
federal government under the Divorce Act.[31] The Quebec rules thus apply to determine child
support in divorce proceedings when both spouses are ordinarily resident
in Quebec. Where one of the parents resides outside Quebec, then the
Federal Child Support Guidelines apply. The Quebec child support
rules therefore apply to most divorces in Quebec.
In Quebec, the computer software most often used to make income,
support and tax calculations is AliForm, along with AliTax.
In our formulas, the starting point for the determination of income is
Guidelines income, a measure of gross income defined in considerable
detail under the Federal Child Support Guidelines. The major reason
for this choice was to simplify the determination of income by using the
same definition for both child and spousal support.
For the same reason, in the Quebec context, the formulas will start
with the definition of annual income (revenue annuel) in section 9 of
the Regulation Respecting the Determination of Child Support
Payments. It too is a gross income measure, with a broad scope very
similar to Guidelines income.
Under the without child support formula set out in Chapter 5,
length of marriage is critical in determining both the amount and the
duration of spousal support. Length of marriage is defined as the period
of spousal cohabitation, including any period of pre-marital cohabitation,
and ending with the date of separation. The inclusion of pre-marital
cohabitation in part reflects provincial/territorial family laws accepting
cohabitation for a specified period as a basis for spousal support in
non-marital relationships.
Under the Civil Code, by contrast, there is no entitlement to
spousal support for unmarried cohabitants. In Quebec divorce cases, some
judges therefore ignore any period of pre-marital cohabitation, while
other judges treat that period as a relevant consideration in determining
spousal support in divorce proceedings. That difference of opinion will
have important implications for outcomes under these advisory guidelines
in the application of the without child support formula.
In the few circumstances where one party lives outside the province and
the federal guidelines apply in a Quebec divorce, no adjustments to the
with child support formula are necessary. The Quebec child support
rules apply in most divorce cases, however, and when these rules apply,
some modifications are required.
It should be noted that section 825.13 of the Quebec Code of
Civil Procedure clearly gives priority to child support over spousal
support, in language similar to s. 15.3(1) of the Divorce
Act.[32]
While there are some broad similarities between the two schemes, the
Quebec child support rules differ from the federal guidelines in
significant respects:
- both parents’ incomes are taken into account;
- the floor is higher, as there is a $10,000 basic deduction for
self-support;
- the ceiling for the combined disposable incomes of the parents is
$200,000 annually;
- access to the child of between 20 and 40 per cent of the time by the
non-custodial parent affects the amount of child support;
- additional expenses are defined somewhat differently, especially for
extracurricular activities (which need not be extraordinary);
- the value of the assets of a parent may affect the amount of child
support, as may the resources available to the child;
- an adjustment can be made if child support is more than 50 per cent
of a parent’s disposable income;
- undue hardship does not include a standard-of-living test; and
- only simple hardship is now required for any adjustment for a
parent’s support obligations respecting other children.[33]
The with child support formula set out in Chapter 6
works easily and effectively with the Quebec child support rules. The
Quebec rules first generate the respective contributions to child
support—the amounts to be backed out in determining each spouse’s
individual net disposable income. The percentage ranges under the basic
formula are then applied to the remaining pool of INDI to generate the
amount of spousal support.
Government benefits and refundable credits also have to be added back
to the recipient spouse’s INDI in cases under the Quebec child support
rules. As with Guidelines income, these sources of income are not included
under the definition of annual income in the Quebec rules.
Step-by-step, here is how the with child support formula works with the
Quebec child support rules:
- First, the Quebec rules use an income-shares formula, where the
table sets out the basic annual contribution for the child required
jointly from the parents based upon their combined disposable incomes as
defined in the Regulation.
- Second, to this basic annual contribution are added any child-care
expenses, post-secondary education expenses and any other special
expenses.
- Third, to determine the payor’s child support, the Quebec rules
calculate the respective parental child support contributions based upon
each parent’s disposable income. The Quebec rules thus calculate an
actual contribution for the recipient spouse, avoiding any need to
compute a notional table amount.
- Fourth, the Quebec rules adjust parental child support contributions
explicitly and mathematically for different custodial arrangements,
including sole custody, sole custody with access between 20 and 40 per
cent of the time (described as sole custody with visiting and prolonged
outing rights), split custody (described as sole custody granted to each
parent), shared custody, and any combinations of the foregoing
arrangements.
The respective contributions, after any such adjustments, then become
the basis for calculating individual net disposable income for each spouse
and in turn for determining the ranges of spousal support.
Apart from these adjustments, the spousal support advisory guidelines
will operate in essentially the same fashion in divorce cases in Quebec as
in the other provinces and territories.
