Spousal Support Advisory Guidelines:
A Draft
Proposal
[ Previous
| Table
of Contents | Cover
Page ]
ENDNOTES
[1] Divorce Act, R.S.C. 1995, c. 3 (2nd
Supp).
[2] The Federal Child Support Guidelines,
SOR/ 97-175, which were enacted as regulations pursuant to the Divorce
Act, ibid, came into force in May, 1997. All provinces and
territories save Alberta (where a Bill to introduce child support
guidelines has been passed but not yet proclaimed) and Quebec (where a
different guidelines model applies) have adopted child support guidelines
that are either identical or similar to the Federal Child Support
Guidelines. The guidelines are based on a percentage-of-income
formula.
[3] For a more detailed review of the judicial
interpretation of the Divorce Act’s spousal support provisions see
Carol Rogerson, “The Canadian Law of Spousal Support” (2004), 38 Family
Law Quarterly 69; Carol Rogerson, “Spousal Support
Post-Bracklow: The Pendulum Swings Again?” (2001), 19 Canadian
Family Law Quarterly 185; Rollie Thompson “Everything is Broken: No
More Spousal Support Principles?” unpublished paper prepared for the
Continuing Legal Education Society of British Columbia Family Law
Conference, July 12-13, 2001 available online at www. cle.bc.ca. The
Background Paper, discussed at note 10 below and accompanying text, also
reviews the current law of spousal support.
[4] Moge v. Moge, [1992] 3 S.C.R.
813.
[5] Bracklow v. Bracklow, [1999] 1 S.C.R.
420.
[6] The three cases were Pelech v.
Pelech, [1987] 1 S.C.R. 801, Richardson v. Richardson, [1987] 1
S.C.R. 857 and Caron v. Caron, [1987] 1 S.C.R. 892. All three cases
were decided under the earlier, 1968 Divorce Act and all three also
involved separation agreements in which the former wives had waived their
rights to ongoing spousal support. In each case the Court refused to
override the agreement and the application for spousal support was
dismissed.
[7] After the Ontario Court of Appeal’s refusal
to base an award on such evidence in Elliot v. Elliot (1993), 48
R.F.L. (3d) 237 (Ont. C.A.) it virtually disappeared from spousal support
cases.
[8] Ross v. Ross (1995), 16 R.F.L. (4th)
1 (N.B.C.A.) at 7.
[10] Carol Rogerson, Developing Spousal
Support Guidelines in Canada: Beginning the Discussion (December,
2002), available on the Department of Justice website at: http://canada.justice.gc.ca/en/dept/pub/spousal/index.html
. The Background Paper is discussed in Chapter 2.
[11] American Law Institute, Principles of
the Law of Family Dissolution: Analysis and Recommendations
(LexisNexis, 2002). The recommendations with respect to spousal support
are found in Chapter 5, “Compensatory Spousal Payments.”
[12] See for example V. Jennifer Mackinnon and
E. Jane Murray, “Magical Mystery Tour: Seeking Greater Consistency in
Spousal Support Awards” (2004), 22 Canadian Family Law Quarterly
215.
[13] Miglin v. Miglin, [2003] 1 S.C.R.
303.
[14] Support obligations to children or spouses
from prior relationships are dealt with as exceptions under both formulas,
discussed below.
[15] In cases where the determination of
spousal support is taking place many years after the separation and the
payor’s salary has increased dramatically since separation, there may be
an issue of whether it is appropriate to use the parties’ current incomes
to determine support under the advisory guidelines. The treatment of
post-separation increases in the payor’s income is discussed in
Chapter 10.
[16] Moge v. Moge, [1992] 3 S.C.R. 813
at 870.
[17] The extent to which Bracklow
supports this theory is questionable. Although the Court made many
references to basic social obligation, it also held that a former spouse
will not necessarily be obligated to meet the needs of the other spouse
indefinitely, even when those needs are permanent. The extent of the
obligation would depend upon many factors, including the length of the
relationship, the way the parties had structured their relationship,
ability to pay, and the existence of new relationships.
[18] In the case of negotiated agreements,
future changes in spousal support will be governed by the terms of the
agreement; in the case of consent orders, by both the legislative
provisions governing variation and the terms of any incorporated
agreement. These issues are discussed in more detail in
Chapter 10.
[19] Caratun v. Caratun (1993), 42
R.F.L. (3d) 113 (Ont. C.A.). The ALI proposals also contain an exception
for disproportionate compensatory losses in short marriages. With respect
to Caratun-type cases, the ALI’s proposals frame these as
reimbursement support cases which involve compensation for a loss,
i.e., the loss either spouse incurs when the marriage is dissolved before
that spouse realizes a fair return from his or her investment in the other
spouse’s earning capacity. Spousal support in these cases, the ALI
suggests, ought to be the reimbursement of living and other expenses
contributed by the claimant spouse.
[20] The result of the Supreme Court of Canada
decision was to return the case to the trial judge for a re-hearing of
Mrs. Bracklow’s claim for spousal support. That decision is reported at
(1999), 3 R.F.L. (5th) 179 (B.C.S.C.).
[21] Boston v. Boston, [2001] 2 S.C.R.
413.
[22] The child support obligation must be for a
child of the marriage. A child support obligation to a child from a prior
marriage or relationship is dealt with as an exception under both
formulas, explained in more detail in the exceptions discussion in
Chapters 5
and 6.
[23] Andrews v. Andrews, (1999), 50
R.F.L. (4th) 1 (Ont. C.A.).
[24] See for example Gale v. Gale
(2000), 6 R.F.L. (5th) 157 (Man.Q.B.), Bastedo v. Bastedo, [2000]
P.E.I.J. No. 49 (S.C.T.D.), Lyttle v. Bourget, [1999] N.S.J. No.
298 (S.C.), Tedham v. Tedham, [2002] B.C.J. No. 1635 (S.C.),
Clark v. Cooper-Clark, [2002] N.B.J. No. 41 (Q.B.).
[26] Bergeron v. Bergeron (1999), 2
R.F.L. (5th) 57 (Ont. S.C.J.).
[27] Contino v.
Leonelli-Contino (2003), 42 R.F.L. (5th) 326 (Ont.
C.A.).
[28] Davey v. Davey (2003), 36
R.F.L. (5th) 297 (N.S.C.A.), affirming (2002), 205 N.S.R. (2d) 367
(N.S.S.C.).
[29] Decret 484-97, 1997 G.O. II, 2117 and
2605, modified by Decret 777-97, 1997 G.O. II, 3648 and Decret 1312‑2003,
2003 G.O. II, 5396. The form is Schedule I and the table is Schedule
II.
[30] L.Q. 1996, c. 68 and L.Q. 2004, c. 5.
Sections 585 to 596 of the Civil Code govern the support of
children, with sections 587.1 to 587.3 implementing the child support
rules. Sections 825.8 to 825.14 of the Code of Civil Procedure
regulate the procedure for determining child support.
[31] Divorce Act, R.S.C. 1985, c. 3 (2nd
Supp), ss. 2(1) applicable guidelines, (5) and (6). The designation is
S.O.R./97-237.
[32] Section 825.13 states: “The support to be
provided to a child is determined without regard to support claimed by a
parent of the child for himself.”
[33] See Jean-Marie Fortin and Jocelyn Verdon,
AliForm annoté Barème québécois: Aspects civils et fiscaux,
2nd ed. (Brossard: Publications CCH, 2004) and also Dominique Goubau,
“Comparison of Federal and Quebec Regulations for Determining Child
Support,” and Jean-Marie Fortin, “Quebec Guidelines for the Determination
of Child Support,” in Federal Child Support Guidelines Reference
Manual (Ottawa, 1998) at J-7 to J-25 and J-29 to J-41. The Quebec
rules are also explained in Department of Justice, Children Come First:
A Report to Parliament Reviewing the Provisions and Operation of the
Federal Child Support Guidelines (Ottawa, 2002), Volume 2 at
23‑28.
[34] Miglin v. Miglin, [2003] 1 S.C.R.
303
[35] See Rollie Thompson, “The Second Family
Conundrum in Child Support” (2001), 18 Canadian Journal of Family
Law 227.
