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Spousal Support Advisory Guidelines:
A Draft Proposal

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In 2001 the federal Department of Justice identified the need for a project to explore the possibility of developing some form of advisory spousal support guidelines. The aim of the project was to bring more certainty and predictability to the determination of spousal support under the Divorce Act.[1] The project was a response to growing concerns expressed by lawyers, judges, mediators and the public about the lack of certainty and predictability in the current law of spousal support, creating daily dilemmas in advising clients, and negotiating, litigating or—in the case of judges—deciding spousal support issues. We were retained to direct that project.

Much hard work has been done in the intervening three years, culminating in this Draft Proposal for a set of advisory spousal support guidelines. As its title indicates, this is a draft document which we put forward to invite discussion and feedback.

The term “guidelines” inevitably brings to mind the Federal Child Support Guidelines, enacted in 1997.[2] We need to emphasize at the beginning that this comparison must be resisted. This project does not involve formal, legislative reform. Unlike the federal, provincial and territorial child support guidelines, these advisory guidelines will not be legislated, even after the process of feedback. They are instead intended to be informal guidelines that will operate on an advisory basis only, within the existing legislative framework. They will not have the binding force of law and will be applied only to the extent that lawyers and judges find them useful. They are guidelines in the true sense of the word. We have called them advisory guidelines to differentiate them from the child support guidelines.

Objectives of these advisory guidelines

These advisory guidelines are intended as a practical tool to assist in determinations of spousal support within the current legal framework—to operate primarily as a starting point in negotiations and settlements. The project was not directed at a theoretical re-ordering of the law of spousal support or at creating a new model of spousal support. The formulas we have developed are intended as proxies for the spousal support objectives found in the Divorce Act as elaborated upon by the Supreme Court of Canada. Our goal was to develop guidelines that would achieve appropriate results over a wide range of typical cases.

Given the informal nature of these advisory guidelines, they have been developed with the recognition that they must be broadly consistent with current support outcomes while also providing some much needed structure and consistency to this area of law—a not insignificant challenge. As informal guidelines, they do not address entitlement, but deal only with the amount and duration of support once entitlement has been established. In the same vein they confer no power to re-open existing spousal support agreements beyond what exists under current law.

Content of the proposed advisory guidelines

The proposed advisory guidelines are based on what is called income sharing.Contrary to popular conception, income sharing does not necessarily mean equal sharing. It simply means that spousal support is determined as a percentage of spousal incomes. The percentages can vary according to a number of factors. Our proposed scheme of advisory guidelines offers two basic formulas that base spousal support on spousal incomes and other relevant factors such as the presence or absence of dependent children, and the length of the marriage. The formulas deal with the amount (sometimes referred to as quantum) and duration of spousal support once entitlement to support has been established. The formulas generate ranges of outcomes, rather than precise figures for amount and duration, which may be restructured by trading off amount against duration.

The proposed guidelines are advisory only and thus always allow for departures from the outcomes generated by the formulas on a case-by-case basis where they are not appropriate. While we have tried to specify exceptions to further assist the parties and the courts in framing and assessing any departures from the formulas’ ranges, they are not exhaustive of the grounds for departure. There will still be considerable room for the exercise of discretion under these advisory guidelines but it will be exercised within a much more defined structure than now exists—one with clearer starting points. Budgets, which are currently the primary tool in spousal support determinations, will play a reduced and less central role.

Structure of this report

Before we discuss in any more detail the actual content of these proposed spousal support advisory guidelines, there are many preliminary matters that must be addressed so that the advisory guidelines can be properly understood. In Chapter 1 we provide some necessary background to the project. We review the current legal framework for spousal support—the framework within which these advisory guidelines will operate—and also discuss the problems within the current law that led to this guidelines initiative.

In Chapter 2 we discuss in more detail the nature of this project, the challenges it raises, the process by which these advisory guidelines were developed, and the next stages of the project.

In Chapter 3 we deal with the preliminary question that many will be asking: Are spousal support advisory guidelines a good idea? We review the advantages and disadvantages of advisory guidelines, focussing on the particular set of informal, voluntary advisory guidelines we are proposing. To illustrate their potential usefulness, we also sketch how these advisory guidelines might work in practice.

With Chapter 4, we begin to move into the actual substance of the Draft Proposal, providing a road map of the basic structure of the advisory guidelines.

Chapter 5 deals with the first of the two basic formulas around which the advisory guidelines are structured—the without child support formula, which applies in cases where there are no dependent children and hence no concurrent child support obligation.

Chapter 6 deals with the other basic formula—the with child support formula, which applies in cases where there are dependent children.

Chapter 7 identifies the ceilings and floors—the upper and lower income levels over which the advisory guidelines are applicable.

Chapter 8 deals with the application of the advisory guidelines to interim spousal support determinations.

Chapter 9 deals with the application of the advisory guidelines to divorce cases in Quebec.

Chapter 10 addresses the application of the advisory guidelines in the context of reviews and variations, including situations involving remarriage and second families.

Chapter 11 offers a brief conclusion, including details on how to communicate your views on this Draft Proposal to us.

At the end of the document there are several appendices and a glossary of terms that offers a handy reference point for many of the terms used in this document. Some of these terms will be familiar to family lawyers and judges but not to other readers; others are new terms specific to this proposed set of spousal support advisory guidelines.