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Spousal Support Advisory Guidelines:
A Draft Proposal

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[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 unpublished paper prepared for the Continuing Legal Education Society of British Columbia Family Law Conference, July 12-13, 2001 available online at www. 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.

[9]  At 870.

[10]  Carol Rogerson, Developing Spousal Support Guidelines in Canada: Beginning the Discussion (December, 2002), available on the Department of Justice website at: . 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.).

[25]  See the cases listed in Appendix A.

[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.