SPOUSAL SUPPORT ADVISORY GUIDELINES
July 2008

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TABLE OF CONTENTS

• EXECUTIVE SUMMARY
• INTRODUCTION
• 1. BACKGROUND — THE CURRENT LAW OF SPOUSAL SUPPORT
  • 1.1 The Legislative Framework
  • 1.2 Judicial Interpretation
  • 1.3 The Problem of Spousal Support and the Need for Guidelines
  • 1.4 Why Guidelines Now?
• 2. THE GUIDELINES PROJECT
  • 2.1 The Nature of the Guidelines: Informal and Advisory
  • 2.2 The Challenges of the Project
    • 2.2.1 Theory and practice
    • 2.2.2 Reflecting current practice, changing current practice
    • 2.2.3 National guidelines and local spousal support cultures
  • 2.3 The Development of the Guidelines and the Release of the Draft Proposal
  • 2.4 The Second Stage of the Process: Information, Feedback and Revision
  • 2.5 The Response to the Advisory Guidelines
    • 2.5.1 Widespread use of the Advisory Guidelines
    • 2.5.2 Criticisms of the Guidelines
    • 2.5.3 The Advisory Guidelines in the courts
    • 2.5.4 Results of the feedback: "the ranges are about right"
    • 2.5.5 Unsophisticated use
• 3. AN OVERVIEW OF THE ADVISORY GUIDELINES
  • 3.1 Income Sharing
  • 3.2 Preliminary Issues — The Applicability of the Advisory Guidelines
    • 3.2.1 Form and force
    • 3.2.2 Entitlement
    • 3.2.3 Application to provincial/territorial law
    • 3.2.4 Application to agreements
    • 3.2.5 Interim orders
    • 3.2.6 Review and variation
  • 3.3 The Formulas
    • 3.3.1 Two basic formulas
    • 3.3.2 Determining income
    • 3.3.3 the without child support formula
    • 3.3.4 The with child support formula
    • 3.3.5 Length of marriage
    • 3.3.6 Ranges
    • 3.3.7 Ceilings and floors
  • 3.4 After the Formulas Have Been Applied
    • 3.4.1 Using the ranges
    • 3.4.2 Restructuring
    • 3.4.3 Exceptions
• 4. ENTITLEMENT
  • 4.1 Entitlement as a Threshold Issue: The "No Entitlement" Cases
  • 4.2 Entitlement at Other Stages of the Guidelines Analysis
  • 4.3 Entitlement Issues on Review and Variation
• 5. APPLICATION
  • 5.1 Application to provincial/territorial law
  • 5.2 Application to agreements
  • 5.3 Interim orders
  • 5.4 Review and Variation
• 6. INCOME
  • 6.1 The Starting Point for Income Determination
  • 6.2 Social Assistance Is Not "Income"
  • 6.3 The Child Tax Benefit and Other Child Benefits
  • 6.4 The Universal Child Care Benefit (UCCB)
  • 6.5 Benefits for Children Other Than Children of the Marriage
  • 6.6 Non-Taxable Incomes
  • 6.7 Time for Determining Income
• 7. The without child support formula
  • 7.1 The Basic Structure of the without child support formula
  • 7.2 Merger over Time and Existing Theories of Spousal Support
  • 7.3 Determining the Length of the Relationship
  • 7.4 The Formula for Amount
    • 7.4.1 The equalization of net income cap
    • 7.4.2 The problem of amount in short marriages
  • 7.5 The Formula for Duration
    • 7.5.1 The tendency to ignore duration
    • 7.5.2 The meaning of "indefinite" support
    • 7.5.3 The "rule of 65": the age factor and indefinite support
    • 7.5.4 Time limits in short marriages
    • 7.5.5 Lowering the threshold for indefinite support?
    • 7.5.6 The problem of time limits in medium length marriages
  • 7.6 Making the Formula Concrete — Some Examples
    • 7.6.1 A short-marriage example
    • 7.6.2 Some medium-length marriage examples
    • 7.6.3 Some long-marriage examples
  • 7.7 After the Formula
• 8. THE with child support formula
  • 8.1 The Compensatory Rationale for Spousal Support
  • 8.2 Background to the Basic Formula
  • 8.3 The Basic Formula
    • 8.3.1 Calculating individual net disposable income
    • 8.3.2 The Basic Formula: Dividing Individual Net Disposable Income
  • 8.4 Amounts of Spousal Support: Examples of the Basic Formula
  • 8.5 Duration under the Basic Formula
    • 8.5.1 The creation of a range for duration in the basic formula
    • 8.5.2 The length-of-marriage test for duration
    • 8.5.3 The age-of-children test for duration
    • 8.5.4 The use of the two tests for duration: whichever is longer
    • 8.5.5 The problem of short marriages with young children
  • 8.6 Shared Custody
    • 8.6.1 Adjusting for rotating child benefits
    • 8.6.2 Adjusting the ranges for child support that departs from the set-off
    • 8.6.3 Adjusting the limits of the range
  • 8.7 Split custody
  • 8.8 Step-Children
  • 8.9 A Hybrid Formula for Spousal Support Paid by the Custodial Parent (The Custodial Payor Formula)
  • 8.10 A Hybrid Formula for Adult Children and Section 3(2)(b)
  • 8.11 Crossover to the with child support formula
• 9. USING THE RANGES
  • 9.1 Strength of Any Compensatory Claim
  • 9.2 Recipient’s Needs
  • 9.3 Age, Number, Needs and Standard of Living of Children
  • 9.4 Needs and Ability to Pay of Payor
  • 9.5 Work Incentives for Payor
  • 9.6 Property Division and Debts
  • 9.7 Self-Sufficiency Incentives
• 10. RESTRUCTURING
  • 10.1 The General Concept: Trading Off Amount Against Duration
  • 10.2 How Does Restructuring Work? Some Examples
    • 10.2.1 Example 1: restructuring by front-end loading
    • 10.2.2 Example 2: restructuring by extending duration and reducing amount
  • 10.3 When Should You Think About Restructuring?
    • 10.3.1 Restructuring under the without child support formula
    • 10.3.2 Restructuring under the with child support formula
    • 10.3.3 Restructuring under the custodial payor formula
• 11. CEILINGS AND FLOORS
  • 11.1 The Ceiling
  • 11.2 The Floor
  • 11.3 Payor Income Above the $350,000 Ceiling
  • 11.4 Payor Income Below $20,000/$30,000
• 12. EXCEPTIONS
  • 12.1 Compelling Financial Circumstances in the Interim Period
  • 12.2 Debt Payment
  • 12.3 Prior Support Obligations
    • 12.3.1 Prior support under the without child support formula
    • 12.3.2 Prior support under the with child support formula
    • 12.3.3 Prior children in the spouse’s care
  • 12.4 Illness and disability
  • 12.5 The compensatory exception in short marriages without children
  • 12.6 Property Division, Reapportionment of Property
    • 12.6.1 Reapportionment of property (British Columbia)
    • 12.6.2 An exception for high property awards?
    • 12.6.3 Boston v. Boston
  • 12.7 Basic Needs/Hardship: Without Child Support, Custodial Payor Formulas
  • 12.8 Non-Taxable Payor Income
  • 12.9 Non-Primary Parent to Fulfil Parenting Role under the Custodial Payor Formula
  • 12.10 Special Needs of Child
  • 12.11 Section 15.3: Small Amounts, Inadequate Compensation under the With Child Support Formula
• 13. SELF-SUFFICIENCY
  • 13.1 Entitlement
  • 13.2 Imputing Income
  • 13.3 Using the Ranges
  • 13.4 Restructuring
  • 13.5 Time Limits: the without child support formula
  • 13.6 Time Limits: The with child support formula
  • 13.7 Review Orders
  • 13.8 Indefinite Support Is Not Permanent Support
  • 13.9 Real Incentives for Self-Sufficiency
• 14. VARIATION, REVIEW, REMARRIAGE, SECOND FAMILIES
  • 14.1 Material Changes, Reviews and Issues of Continuing Entitlement
  • 14.2 Applications to Reduce Spousal Support Because of Changes in Income
  • 14.3 The Payor’s Post-Separation Income Increase
  • 14.4 The Recipient’s Reduced Income After Separation
  • 14.5 Crossover Between the Two Formulas
  • 14.6 The Payor’s Remarriage or Re-partnering
  • 14.7 The Recipient’s Remarriage or Re-partnering
  • 14.8 Second Families
• 15. THE ADVISORY GUIDELINES IN QUEBEC
  • 15.1 The Definition of Income
  • 15.2 Length of Marriage Under the without child support formula
  • 15.3 Child Support and the with child support formula
  • 15.4 The Current State of the Advisory Guidelines in Quebec
• 16. CONCLUSION
• APPENDIX A: MEMBERS OF THE ADVISORY WORKING GROUP ON FAMILY LAW 2002-2007
• GLOSSARY OF TERMS
• SELECT BIBLIOGRAPHY
• ENDNOTES

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