Spousal Support Advisory Guidelines July 2008

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 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 unpublished paper prepared for the Continuing Legal Education Society of British Columbia Family Law Conference, July 12-13, 2001 available online at www.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 11 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. (4 th ) 1 (N.B.C.A.) at 7.
  • [9] See Moge, supra note 4 at 870.
  • [10] The past tense is used to describe the problems in the law of spousal support that the Advisory Guidelines were intended to address. Since their release in draft form in January of 2005, the Advisory Guidelines have already had an impact in reducing the degree of uncertainty and unpredictability in the current law of spousal support. The use of the past tense should not be taken as suggesting, however, that these problems have been eliminated.
  • [11] Carol Rogerson, Developing Spousal Support Guidelines in Canada: Beginning the Discussion (December, 2002), available on the Department of Justice website. The Background Paper is discussed in Chapter 2.
  • [12] 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."
  • [13] 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.
  • [14] The Background Paper has been translated and is available on the Department of Justice web site at http://canada.justice.gc.ca/en/dept/pub/spousal/index.html and on the Advisory Guidelines web site of the Faculty of Law, University of Toronto , see note 16, below.
  • [15] Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines: A Draft Proposal (January, 2005), available on-line at: /en/dept/pub/spousal/project/index.html and also on the Advisory Guidelines web site, see note 16, below. The paper was also issued in French under the title Lignes directrices facultatives en matière de pensions alimentaires pour époux-Ébauche d'une proposition .
  • [16] This web site is located at the Faculty of Law, University of Toronto :
    English: www.law.utoronto.ca/faculty/rogerson/ssag.html
    French: www.law.utoronto.ca/faculty/rogerson/ssag_fr.html
  • [17] These include QuickLaw, WestlaweCARSWELL, the Canadian Bar Association National Family Law Section website, and for judges, the judicial library on Judicom.
  • [18] Carol Rogerson and Rollie Thompson, "Issues for Discussion: Revising the Spousal Support Advisory Guidelines" (August 2006), posted on the Advisory Guidelines web site, supra note 16.
  • [19] Comments were received from the Canadian Bar Association, National Family Law Section and from the Family Law Committee of the Barreau du Québec.
  • [20] See, for example, the decisions of Justice Trussler in V.S. v. A.K. , [2005] A.J. No. 1357, 2005 ABQB 754 (Alta.Q.B), Justice Julien in D.S. c. M.S. , [2006] J.Q. no. 506, 2006 QCCS 334 (C.S), and Justice Campbell in Vanderlinden v. Vanderlinden , [2007] N.S.J. No. 107, 2007 NSSC 80. The criticisms voiced by Justice Julien were echoed at the appellate level by Quebec Court of Appeal G.V. v. C.G. , [2006] J.Q. no. 5231.
  • [21] As of February 8, 2008 the Advisory Guidelines had been considered in 425 reported cases. British Columbia generated the highest number of decisions (167), far surpassing the other provinces. Ontario came in second (107). A significant number of cases were from Alberta (42) and Nova Scotia (29). After this came Newfoundland and Labrador (23), Saskatchewan (19) and New Brunswick (18).
  • [22] See Carol Rogerson and Rollie Thompson, "The Advisory Guidelines 31 Months Later" (September 12, 2007) and "The Spousal Support Advisory Guidelines Three Years Later" (February 8, 2008), both posted on the Advisory Guidelines web site, supra note 16.
  • [23] G.V . v. C.G . , supra note 20. At worst the decision can be read as an adoption by the Court of the rigidity and illegitimacy criticisms discussed above, and hence as a rejection of the Advisory Guidelines. At best the decision can be read as a ruling on the facts in which the trial judge was found to have used the Guidelines inappropriately by failing to engage in any of the necessary analysis apart from the Guidelines formula. The use of the Advisory Guidelines in Quebec is discussed more fully in Chapter 15.
  • [24] Leave to appeal was sought but denied in S.C. v. J.C. , [2006] N.B.J. No. 186, a decision of the New Brunswick Court of Appeal which endorsed the use of the Advisory Guidelines by the trial judge; see note 26, below.
  • [25] [2005] B.C.J. No. 1748, 2005 BCCA 406.
  • [26] [2006] N.B.J. No. 186, leave to appeal to the SCC denied, [2006] S.C.C.A. No. 246 (Oct. 19, 2006))
  • [27] [2006] B.C.J. No. 1550, 2006 BCCA 338.
  • [28] Fisher v. Fisher, [2008] O.J. No. 38, 2008 ONCA 11.
  • [29] A more detailed discussion of our findings can be found in Carol Rogerson and Rollie Thompson, "The Advisory Guidelines 31 Months Later" (September 12, 2007), posted on the Advisory Guidelines web site, supra note 16.
  • [30] The revisions are detailed in the accompanying "Report on Revisions".
  • [31] This concern was emphasized in the submission of the Canadian Bar Association, National Family Law Section, "Spousal Support Advisory Guidelines," May 2007, referred to supra , note 19.
  • [32] As part of the revision process we also plan to produce an "operating manual" which will present in a concise format the various steps and considerations involved the use of the Advisory Guidelines. To the extent that the use of computer software has contributed to the problem of unsophisticated use by presenting the formula outcomes without analysis or reasons, we will be working with the software suppliers to encourage the use of more prompts and reminders, to ensure that lawyers and judges remain alert to the full operation of the Advisory Guidelines, before and beyond the formulaic ranges.
  • [33] Miglin v. Miglin , [2003] 1 S.C.R. 303.
  • [34] For an example of a case in which the Advisory Guidelines were considered in the entitlement analysis see R.S.R. v. S.M.R., [2006] B.C.J. No. 2109, 2006 BCSC 1404.
  • [35] As will be shown in the discussion below, findings of "no entitlement" are most likely in shorter marriages, which are "small stakes" cases. At the other end of the spectrum, entitlement issues are usually fairly clear in "large stakes" cases like long marriages. This means that entitlement is most likely to arise as a contested issue in medium-length cases under the without child support formula.
  • [36] A good example is the leading B.C.C.A. decision in Yemchuk v. Yemchuk , [2005] B.C.J. No. 1748, 2005 B.C.C.A. The support claim was brought by the husband who had retired early to facilitate the wife's relocation because of her employment. The trial judge had found no entitlement on the husband's part. The Court of Appeal overturned that decision, engaging in an extensive analysis of the husband's entitlement on compensatory grounds, before turning to the Advisory Guidelines as a useful tool in determining the appropriate amount of support.
  • [37] A good example is Eastwood v. Eastwood , 2006 CarswellNB 655, 2006 NBQB 413.
  • [38] See Rezel v. Rezel, [2007] O.J. No. 1460 (S.C.J.).
  • [39] See Eastwood, supra note 37.
  • [40] See Chutter v. Chutter, [2007] B.C.J. No. 1247, 2007 BCSC 814.
  • [41] See W.J. M. v. L.A.M. , [2007] B.C.J. No. 1283, 2007 BCSC 842.
  • [42] See Rezansoff v. Rezansoff , [2007] S.J. No. 37, 2007 SKQB 32 for an excellent discussion of this in the context of a case involving non-compensatory support.
  • [43] See J.W.J.McC. v. T.E.R. , [2007] B.C.J. No. 358, 2007 BCSC 252.
  • [44] See Kelly v. Kelly , [2007] B.C.J. No. 324, 2007 BCSC 227.
  • [45] See for example D.B.C. v. R.M.W. , [2006] A.J. No. 1629, 2006 ABQB 905 where the wife was found not entitled to a share of the husband's increased income after separation both because she had not contributed to that increase and because it was unrelated to the marital lifestyle. In fact the husband had decreased his income during the marriage because of a joint marital decision to alter their lifestyle.
  • [46] See for example, Brown v. Brown , [2007] N.B.J. No. 330, 2007 NBQB 227 (application to married couple under Family Services Act) and Barter v. Barter, [2006] N.J. No. 237, 2006 NLUFC 39 (used under Family Law Act to determine that agreement satisfies provincial support objectives).
  • [47] See for example McCulloch v. Bawtinheimer , [2006] A.J. No. 361 (Q.B.) using the Advisory Guidelines in a case involving a six year relationship between "adult interdependent partners" as defined under Alberta legislation,. The result in Bawtinheimer was consistent with the ranges generated by the without child support formula after an explicit use of restructuring. See also Foley v. Girard , [2006] O.J. No. 2496, which involved a 20 year same-sex relationship and a result consistent with the without child support formula.
  • [48] See for example s. 7(1) of Manitoba's Family Maintenance Act , C.C.S.M. cF20, s. 4(k) of Nova Scotia's Family Maintenance and Custody Act , R.S.N.S. 1989, c. 160 and ss. 8(d) and 9(a) and (b) of Ontario's Family Law Act , R.S.O. 1990, c. F.3.
  • [49] See for example s. 33(10) of Ontario 's Family Law Act, ibid .
  • [50] For example the concept of "needs and means" of the spouses under both the Divorce Act and provincial/territorial legislation that does not specifically refer to property as a factor arguably encompasses consideration of the spouses' assets and it is universal practice to determine property division before dealing with spousal support.
  • [51] Miglin v. Miglin, [2003] 1 S.C.R. 303.
  • [52] For a cases where the Advisory Guidelines were found inapplicable because of an agreement see Woodall v. Woodall, [2005] O.J. No. 3826, 2005 ONCJ 253 (Ont. C.J.).
  • [53] See R.S.M. v. M.S.M., [2006] B.C.J. No. 1756, 2006 BCCA 362, W.(C.L.) v. R.(S.U.), 2007 CarswellBC 666, 2007 BCSC 453, Vanderlans v. Vanderlans, 2007 CarswellNfld 119, 2007 NLUFC 8; Rapley v. Rapley, [2006] B.C.J. No. 3213, 2006 BCSC 1854l Barter v. Barter, [2006] N.J. No. 237, 2006 NLUFC 39 and Chepil v. Chepil, [2006] B.C.J. No. 15, 2006 BCSC 15.
  • [54] See R.S.M. v. M.S.M ., ibid.
  • [55] See Santoro v. Santoro, [2006] B.C.J. No. 453, 2006 BCSC 331 ( Miglin used to override agreement; however guidelines of "limited use" because of prior agreement; spousal support set well below the range under the without child support formula).
  • [56] Not surprisingly, two of the early American guidelines found their origins in the assessment of interim spousal support, those in California counties and Pennsylvania .
  • [57] In D.R.M. v. R.B.M ., [2006] B.C.J. No. 3299, 2006 Carswell BC 3177 (S.C.), Justice Martinson set out in detail the rationale for the application of the Advisory Guidelines to interim spousal support orders.
  • [58] Lawrence v. Lawrence, [2006] B.C.J. No. 210, 2006 BCSC 167 at para. 84.
  • [59] Kortlever v. Kortlever, [2007] B.C.J. No. 758, 2007 BCSC 487 at para. 39 (both spouses on social assistance, no spousal support).
  • [60] Rollie Thompson, "The Chemistry of Support: The Interaction of Spousal and Child Support" (2006), 25 C.F.L.Q. 251 at 284-288.
  • [61] Support obligations to children or spouses from prior relationships are dealt with as exceptions under both formulas; see Chapter 11.
  • [62] Some medium length marriages with dependent children in which support is initially determined under the with child support formula may cross-over to the without child support formula for a re-determination of amount after child support ceases. Crossover is discussed in Chapter 14, Variation and Review, below.
  • [63] In developing this formula we drew in part on the American Law Institute (ALI) proposals referred to in Chapter 1, including the concept of merger over time. As we discuss further below, this concept-although not the terminology-is strongly anchored in our current law of spousal support.
  • [64] We have taken this term from the American Law Institute (ALI) proposals which are referred to in Chapter 1 above and discussed in more detail in the Background Paper.
  • [65] Moge v. Moge, [1992] 3 S.C.R. 813 at 870.
  • [66] Some read Bracklow as grounding non-compensatory support in a "basic social obligation" theory of spousal support. This somewhat questionable theory, which is discussed in more detail in the Background Paper, understands need in the absolute sense of an inability to meet basic needs and grounds the obligation to meet that need in the status of marriage itself.
  • [67] Building as it does on the concept of merger over time, the without child support formula does not directly incorporate the "basic social obligation" theory of non-compensatory support that some read Bracklow as supporting, see footnote immediately above. The without child support formula produces awards that will go some way toward meeting basic needs where they exist, but limits the extent of any basic social obligation by the length of the marriage. However, some of the exceptions identified in Chapter 12, such as the illness/disability exception and the basic needs/hardship exception in short marriages do provide some accommodation for elements of basic social obligation.
  • [68] In the revision process we introduced one small element of a net income calculation-an "equalization of net income" cap on the formula, which is discussed below.
  • [69] The concept of the durational factor is drawn from the ALI and Maricopa County guidelines; see Chapter 1.
  • [70] The "48 percent" cap will work well in cases where the payor is working and the recipient is not. It will not necessarily be a good proxy for the equalization of net income cap where both parties are working; that will depend upon the spouses' respective tax rates and deductions.
  • [71] This is true not only for long marriages/relationships in which there were children who are now adults, but also long marriages/relationships in which the parties had no children. See Foley v. Girard, [2006] O.J. No. 2496 (S.C.J.) which involved a 20 year same-sex relationship and Long-Beck v. Beck, [2006] N.B.J. No. 398,2006 NBQB 317 which involved a 22 year marriage without children in which the wife quit work with the husband's consent.
  • [72] See for example, Hance v. Carbone, 2006 CarswellOnt 7063 (Ont.S.C.J.) (17 ½ yr. marriage; spousal support ordered for 15 years in addition to 6 years time-limited provided under separation agreement) and Bishop v. Bishop, [2005] N.S.J. No. 324, 2005 NSSC 220 (N.S.S.C.) (13 year marriage; final order spousal support for 10 years in addition to 1 year interim). For an example under the with child support formula, discussed in Chapter 8, see Fewer v. Fewer, [2005] N.J. No. 303, 2005 NLTD 163 (N.L.S.C.) (16 ½ yr. marriage; 1 child 15 with wife; spousal support ordered for 16 ½ yrs from separation, subject to variation).
  • [73] The variation of time-limited orders is explicitly discussed in Fewer, ibid .
  • [74] One of the best examples is Kelly v. Kelly, [2007] B.C.J. No. 324, 2007 BCSC 227 (17 year relationship, no children, support paid for 9 years; wife remarried; on variation application support recognized as non-compensatory; time-limited to further 19 months, 10 years total.) Another good example under the custodial payor formula is Puddifant v. Puddifant, [2005] N.S.J. No. 558, 2005 NSSC 340 (S.C.F.D.) (12 year marriage, 1 child with husband, wife mental illness, support paid for 9 years; on husband's application to terminate support ordered for further 3 years, total 12 years.)
  • [75] The "rule of 65", which allows for indefinite support to older spouses in marriages of less than 20 years in length, does not apply to short marriages (under 5 years).
  • [76] This is based on an assumption of Ontario residence and the applicable tax rates and mandatory deductions in November 2007.
  • [77] 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 Chapter 12 on Exceptions below.
  • [78] Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 1.
  • [79] Andrews v. Andrews, (1999), 50 R.F.L. (4 th ) 1 (Ont. C.A. ).
  • [80] 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.).
  • [81] The approach to duration under this formula involves fairly extensive reliance upon review orders. We discuss review orders and the leading Supreme Court of Canada decision, Leskun v. Leskun, [2006] 1 S.C.R. 920 in more detail in Chapters 13 and 14. In our view, the role contemplated for review orders under this formula is not inconsistent with Leskun .
  • [82] [2005] 3 S.C.R. 217, 19 R.F.L. (6 th ) 272.
  • [83] Divorce Act, s. 2(2).
  • [84] Carol Rogerson, "The Child Support Obligations of Step-Parents" (2001), 18 Can.J.Fam.L. 9; Nick Bala, "Who is a 'Parent'? 'Standing in the Place of a Parent' and Section 5 of the Child Support Guidelines" in Law Society of Upper Canada, Special Lectures 2006: Family Law ( Toronto : Irwin Law, 2007) at 71.
  • [85] Chartier v. Chartier, [1999] 1 S.C.R. 242.
  • [86] Family Relations Act, R.S.B.C. 1996, c. 128, s. 1 "parent". Section 1(2) requires that the step-parent be married to the parent or that they lived together in a marriage-like relationship for at least two years.
  • [87] Sometimes a court will order the step-parent to pay less than the full table amount, leaving the custodial parent to take steps to obtain or increase child support from the biological parent.
  • [88] Given the way the formula works, any reduction in the step-parent's child support would otherwise lead to an increase in the range for spousal support, an inappropriate result.
  • [89] It is not correct, as some have done, to reduce the payor's gross income by the amount of the deductions. The formula range must first be calculated properly, using the gross incomes, and then judgment exercised about location within that range, with the amount of the deductions used as one factor amongst others.
  • [90] Again, it is not correct to deduct the mandatory pension contribution from a spouse's INDI and lower the whole range. These contributions are just one factor in locating an amount within the range.
  • [91] See for example McCulloch v. Bawtinheimer, [2006] A.J. No. 361 (Q.B.).
  • [92] See Smith v. Smith, [2006] B.C.J. No. 2920, 2006 BCSC 1655 and Martin v. Martin, [2007] O.J. No. 467.
  • [93] A good discussion of restructuring and its place within the overall scheme of the Advisory Guidelines is found in M94lloch v. Bawtinheimer, supra note 91.
  • [94] For an appellate example see the B.C. Court of Appeal decision in Toth v. Kuhn, [2007] B.C.J. No. 244, BCCA 83; for a trial level example see Wang v. Poon, [2007] B.C.J. No. 271, 2007 BCSC 194.
  • [95] Two cases offer careful examples of restructuring to fix a lump sum. From B.C. see Smith v. Smith, supra note 92 (present value of monthly support if paid until payor 65, discounted for tax and adjusted for reapportionment, resulting in lump sum of $25,0000). From Ontario see Martin v. Martin, supra note 92, (9 year marriage with 2 children, husband the support claimant, lump sum support at the low end of the global range awarded under the custodial payor formula adjusted for tax).
  • [96] See for example DIVORCEmate's new SUMmate Quantum v. Duration Analyzer.
  • [97] For an example in the Guidelines case law see McCulloch v. Bawtinheimer, supra note 91.
  • [98] The Ontario case of Martin, supra note 92, is a good example of restructuring under the custodial payor formula, used to create a lump sum award at the low end of the global range for the husband after a nine year marriage.
  • [99] For an early case under this formula, well above the ceiling at a payor income of $1.26 million, see Modry v. Modry, [2005] A.J. No. 442 (Alta.Q.B.). For a custodial payor case, where the amount was below the low end of the range on an income of $500,000, see Milton v. Milton, [2007] N.B.J. No. 414, 2007 NBQB 363 (N.B.Q.B.).
  • [100] For a case that took this approach, see J.W.McC. v. T.E.R., [2007] B.C.J. No. 358, 2007 BCSC 252 (B.C.S.C.), where the range was calculated for $350,000 and then the high end of that range used, as the payor earned $400,000. Other B.C. judges have used the formula above the ceiling in with child support formula cases: Teja v. Dhanda, [2007] B.C.J. No. 1853, 2007 BCSC 1247 (B.C.S.C.)(just below low end of range, $425,000); and E.(Y.J.) v. R.(Y.N.), 2007 CarswellBC 782, 2007 BCSC 509 (B.C.S.C.)(mid-point of range, $602,400).
  • [101] In one Alberta case, where the payor earned $670,965, the full table amount of child support was ordered, but spousal support was much lower than a formulaic result (but in the middle of the range for an income of $350,000): T.L.P. v. F.J.P., [2007] A.J. No. 1114, 2007 ABQB 600 (Alta.Q.B.).
  • [102] For example, A.M.R. v. B.E.R., [2005] P.E.I.J. No. 83, 2005 PESCTD 62 (P.E.I.S.C.)(wife earned $18,557, husband received workers compensation grossed up to $13,525).
  • [103] For example, M.(W.M.) v. M.(H.S.), 2007 CarswellBC 2667, 2007 BCSC 1629 (B.C.S.C.)(older couple, husband on disability income $17,800, wife no income, $600/mo. ordered, middle of range).
  • [104] For a careful analysis of this exception, see Maitland v. Maitland, [2005] O.J. No. 2252 (Ont.S.C.J.) (husband truck driver earned $28,439, wife no income, amount below range ordered).
  • [105] In Kirk v. Hackl, [2007] S.J. No. 87, 2007 SKQB 82 (Sask.Q.B.), two exceptions were at work, both disability and interim circumstances.
  • [106] The result of the Supreme Court of Canada decision was to return the case for a re-hearing of Mrs. Bracklow's claim for spousal support. The rehearing decision is reported at (1999), 3 R.F.L. (5 th ) 179 (B.C.S.C.).
  • [107] For examples of cases where no exception was made, see Puddifant v. Puddifant, [2005] N.S.J. No. 558, 2005 NSSC 340 (N.S.S.C.F.D.); Williston v. Williston, [2006] B.C.J. No. 3248, 2006 BCSC 1869 (B.C.S.C.); and Wise v. Wise, [2006] B.C.J. No. 1143, 2006 BCSC 945 (B.C.S.C.).
  • [108] For example, Bramhill v. Dick, [2007] B.C.J. No. 387, 2007 BCSC 262 (B.C.S.C.).
  • [109] For example, Ahn v. Ahn, [2007] B.C.J. No. 1702, 2007 BCSC 1148 (B.C.S.C.); Fuller v. Matthews, [2007] B.C.J. No. 656, 2007 BCSC 444 (B.C.S.C.).
  • [110] 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.
  • [111] The leading decision would be Toth v. Toth (1995), 13 B.C.L.R. (3d) 1, 17 R.F.L. (4 th ) 55 (B.C.C.A.).
  • [112] Tedham v. Tedham, [2005] B.C.J. No. 2186, 2005 BCCA 502, 261 D.L.R. (4 th ) 332, 47 B.C.L.R. (4 th ) 254, 20 R.F.L. (6 th ) 217; Narayan v. Narayan, [2006] B.C.J. No. 3178, 2006 BCCA 561, 62 B.C.L.R. (4 th ) 116, 34 R.F.L. (6 th ) 272; MacEachern v. MacEachern, [2006] B.C.J. No. 2917, 2006 BCCA 508, 62 B.C.L.R. (4 th ) 95, 33 R.F.L. (6 th ) 315, [2007] 3 W.W.R. 471; Foster v. Foster, [2007] B.C.J. No. 244, 2007 BCCA 83, 64 B.C.L.R. (4 th ) 259, 37 R.F.L. (6 th ) 139.
  • [113] Boston v. Boston, [2001] 2 S.C.R. 413.
  • [114] For examples of Guidelines cases applying Boston, see Pettigrew v. Pettigrew, [2006] N.S.J. No. 321, 2006 NSCA 98 (N.S.C.A.), affirming [2005] N.S.J. No. 616, 2005 NSSC 219 (N.S.S.C.); Puddifant v. Puddifant, [2005] N.S.J. No. 558, 2005 NSSC 340 (N.S.S.C.F.D.); Vanderlans v. Vanderlans, [2007] N.J. No. 121, 2007 NLUFC 8 (N.L.U.F.C.).
  • [115] For example, Simpson v. Grignon, [2007] O.J. No. 1915, 2007 CarswellOnt 3095 (Ont.S.C.J.).
  • [116] The duration of such sponsorship agreements was once as long as 10 years, reduced now to 3 years: Immigration and Refugee Protection Regulations, SOR/2002-227, as am. SOR/2004-167 and SOR/2005-61, s. 132.
  • [117] For example, Gidey v. Abay, [2007] O.J. No. 3693 (Ont.S.C.J.); T.M. v. M.A.G., [2006] B.C.J. No. 3479, 2006 BCPC 604 (B.C.P.C.).
  • [118] For a case of an aboriginal person earning income on reserve, see James v. Torrens, [2007] S.J. No. 334, 2007 SKQB 219 (Sask.Q.B.).
  • [119] Davey v. Davey (2003), 36 R.F.L. (5 th ) 297 (N.S.C.A.), affirming (2002), 205 N.S.R. (2d) 367 (N.S.S.C.).
  • [120] Yeates v. Yeates, 2007 CarswellOnt 2107 (Ont.S.C.J.); Frouws v. Frouws, [2007] B.C.J. No. 282, 2007 BCSC 195 (B.C.S.C.).
  • [121] For an example, see C.E.A.P. v. P.E.P., [2006] B.C.J. No. 3295, 2006 BCSC 1913 (B.C.S.C.).
  • [122] Carol Rogerson, "The Canadian Law of Spousal Support" (2004), 38 F.L.Q. 69.
  • [123] Leskun v. Leskun, [2006] 1 S.C.R. 920, 34 R.F.L. (6 th ) 1 at para. 27.
  • [124] (2003), 35 R.F.L. (5 th ) 256 (Ont.C.A.) at para. 21.
  • [125] MacEachern v. MacEachern, [2006] B.C.J. No. 2917, 2006 BCCA 508 (B.C.C.A.).
  • [126] Rogerson, "Spousal Support Post Bracklow : The Pendulum Swings Again?", supra note 3 at 255.
  • [127] Leskun v. Leskun, [2006] 1 S.C.R. 920 at para. 36.
  • [128] For a recent discussion of review orders, see David Aston, "Review Orders: Let's Have Another Look" (2007), 26 C.F.L.Q. 253.
  • [129] Leskun v. Leskun, [2006] 1 S.C.R. 920.
  • [130] Miglin v. Miglin, [2003] 1 S.C.R. 303.
  • [131] For an excellent discussion of the use of the Advisory Guidelines in variation applications which touches on many of the issues we deal with below see the British Columbia Court of Appeal's December 2007 decision in Beninger v. Beninger, [2007] B.C.J. No. 2657, 2007BCCA. Justice Prowse, writing for the Court, dispels the common misunderstanding that Advisory Guidelines have no application in variation applications, finding instead that they may be applied, but with careful attention to the limits of their applicability.
  • [132] Most of the major cases on this issue are reviewed in D.B.C. v. R.M.W., [2006] A.J. No. 1629, 2006 ABQB 905 (Alta.Q.B.) at paras. 22-32. See also Kelly v. Kelly, [2007] B.C.J. No. 324, 2007 BCSC 227 (B.C.S.C.), where both spouses had also remarried. In Beninger, supra note 131, the B.C.C.A. found on the facts that the wife was entitled to share in the increased income and used the Advisory Guidelines ranges based on the husband's current income to determine the amount of support.
  • [133] See Rollie Thompson, "The Second Family Conundrum in Child Support" (2001), 18 Canadian Journal of Family Law 227.
  • [134] 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.
  • [135] 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
  • [136] 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.
  • [137] 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."
  • [138] 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.
  • [139] [2006] J.Q. no. 5231 (Que.C.A.).
  • [140] In particular, the Family Law Committee of the Barreau du Québec has supported the principles and objectives of the Advisory Guidelines and their use as a tool for reference, orientation, consultation and validation of spousal support.

Date modified: