Spousal Support Advisory Guidelines:
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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. 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. 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
Objectives of these advisory
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
Content of the proposed advisory
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
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
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.
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.
deals with the other basic formula—the with child support formula,
which applies in cases where there are dependent children.
identifies the ceilings and floors—the upper and lower income levels over
which the advisory guidelines are applicable.
deals with the application of the advisory guidelines to interim spousal
deals with the application of the advisory guidelines to divorce cases in
addresses the application of the advisory guidelines in the context of
reviews and variations, including situations involving remarriage and
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.