Developing Spousal Support Guidelines in Canada: Beginning the Discussion

I. INTRODUCTION

Across the country, continuing legal education programs on spousal support draw record numbers. At the National Family Law Program in Kelowna in July of 2002 any session dealing with the topic of spousal support was scheduled in the Grand Ballroom—and the room was full throughout the day. Lawyers and judges are seeking guidance in what has emerged as one of the most difficult areas in current practice. Media coverage of judicial decisions awarding spousal support in the face of a final release in a separation agreement unleashes unending debate about the appropriateness of long-term support obligations. The law of spousal support is confused, uncertain and controversial.

Responding to concerns expressed by lawyers and judges, the federal Department of Justice has decided to initiate a discussion about the possibility of bringing more certainty and predictability into the current law of spousal support. More specifically, the Justice project will facilitate discussions focusing on the possibility of developing guidelines that would assist in the determination of spousal support in individual cases. In short, the project is about moving towards spousal support guidelines.

Any talk of spousal support guidelines evokes the model of the current child support guidelines. Such analogies are not necessarily appropriate. As will be discussed in more detail below, there are many different ways to structure spousal support guidelines and many different ways of conceiving the scope of such guidelines. There is a question, for example, of whether guidelines should only be used to assist in the determination of quantum, or whether they might also provide guidance on issues of duration and even entitlement. There are questions of whether there should be different guidelines for different kinds of fact situations or whether the goal should be a single set of guidelines that would be of more general application. There are also questions about the form of guidelines—whether they should be legislated or informal. And about their force—whether they should be advisory or presumptive.

However, in the context of this paper, which is background document for the Justice project, what any move to guidelines does envision is some degree of reliance on a mathematical formula to determine the portion of spousal income that will be shared after marriage breakdown. More specifically, the paper lays the groundwork for exploring the possibility of developing guidelines based on a methodology of "income-sharing", whereby spousal support would be determined as a percentage of the income difference between the spouses, with the appropriate percentage to be determined by an array of relevant factors, including length of marriage and the presence or absence of children.

The Justice project springs from the perception that our current law of spousal support, which has developed under the statutory framework of the Divorce Act[1] as interpreted by a series of leading judgments by the Supreme Court of Canada (specifically Moge[2] and Bracklow[3]) is excessively discretionary, creating an unacceptable degree of uncertainty and unpredictability.[4] Similar fact situations can generate a wide variation in results. Individual judges are provided with little concrete guidance in determining spousal support outcomes and their subjective perceptions of fair outcomes play a large role in determining the spousal support ultimately ordered. Lawyers in turn have difficulty predicting outcomes, thus impeding their ability to advise clients and to engage in cost-effective settlement negotiations. And for those without legal representation or in weak bargaining positions, support claims may simply not be pursued. More generally, the uncertainty and unpredictability that pervades the law of spousal support serves to cast doubt upon the fairness of the outcomes, thus undermining the legitimacy of the spousal support obligation. The widely differing understandings of the nature of the spousal support obligation that are currently in play generate concerns about unfair outcomes at both ends of the spectrum—in some cases awards may be too high, and in others too low.

Somewhat similar concerns about a lack of consistency and predictability in the area of child support led, in 1997, to the enactment of child support guidelines,[5] which have been largely successful in meeting their goals.[6] The question thus arises whether a similar solution might now be appropriate in the area of spousal support. It is readily acknowledged that the exercise of developing guidelines for spousal support is much more difficult than for child support. The very basis of the spousal support obligation is more controversial and spousal support is understood to serve a wider array of objectives.

In the current structure of family law in Canada, spousal support is the last bastion of discretion, providing an opportunity to do "global economic justice" on the facts of a particular case after taking into account awards under the relatively rigid and formulaic schemes of matrimonial property and child support. As the residual economic remedy, spousal support often ends up adjusting for deficiencies in the other remedies. In the past, when the possibility of spousal support guidelines has been considered, Canadian commentators have generally concluded that this loss of flexibility would be detrimental to the family law system and that it would be impossible to draft guidelines with sufficient flexibility to respond to the diversity of marriages and the multiple objectives of spousal support.[7] The disadvantages of guidelines have generally been found to outweigh any advantages in terms of efficient dispute resolution.

However, a reconsideration of spousal support guidelines may now be appropriate. Child support guidelines, with their formulaic approach to the assessment of child support based upon general estimates of the cost of raising children, have accustomed us both to the notion of aiming for "average" rather than individualized justice and the general philosophy of income sharing after divorce.[8] In addition, the rising costs of litigation have put individualized justice beyond the reach of most spouses—even middle-class clients.

As well, the law of spousal support has become even more unstructured and discretionary over time, particularly in the wake of Bracklow. These developments have undermined the faith that may have been prevalent even five years ago that a principled approach to spousal support was developing through judicial interpretation of the legislation. It is one thing to argue that the law of spousal support needs the flexibility to respond to different fact situations; another to try to defend markedly different outcomes on similar facts, which is now the case. And finally, some of the recent conceptual shifts in the understanding of spousal support, specifically a resurgence of "needs and means" analysis in the post-Bracklow world may have rendered the area more appropriate for the introduction of "income-sharing" by means of guidelines. Some recent decisions, such as that of the Ontario Court of Appeal in Andrews v. Andrews[8a], actually show judges beginning to turn to formulas for the calculation of spousal support.

Some American jurisdictions have experimented with spousal support guidelines for more than a decade, and the influential American Law Institute (ALI), in its massive project dedicated to rethinking the principles of the law of family dissolution, has recommended an approach to spousal support that has a significant formulaic or guideline component.[9] While none of the American guidelines models may in the end be completely appropriate for the Canadian context, they do demonstrate the feasibility in principle of developing some form of spousal support guidelines. The ALI proposal, in particular, also demonstrates that spousal support guidelines can be structured in different ways and can attempt to respond, at least to some extent, to diverse objectives and diverse fact situations, thus meeting some concerns about undue rigidity.

The methodology contemplated in this paper for considering the development of spousal support guidelines is not that of formal legislative reform through which child support guidelines were achieved. The controversial nature of the spousal support obligation suggests that little would be accomplished by opening it up to broad public debate. In the American context, spousal support guidelines have, in general, been the product of bench and bar committees of local bar associations. The guidelines were created with the intention of reflecting local practice and providing a more certain framework to guide settlement negotiations.[10]

A somewhat similar process is being proposed here, one which would involve building guidelines "from the ground up." The process would involve bringing together judges and lawyers with an expertise in family law, with the hope that they would be able to work together to articulate informal guidelines based on emerging patterns (or best practices) embedded in current practice. Such guidelines would be expected to operate on an advisory basis only within the existing legislative framework. They would be intended to provide some common starting points for discussion about appropriate spousal support outcomes in different categories of cases.

Any discussion about the development of guidelines is a challenging project that draws together many complex strands of theory and practice. It is the purpose of this document to provide background information on the many "building blocks" of the project.

Part II of the paper will provide a brief overview of the current law of spousal support law in Canada today. This will serve two purposes. First, it will highlight the problems which have generated the need for guidelines, specifically conceptual confusion combined with an excessive emphasis on the discretionary nature of the decision-making process. The second purpose is to establish the broad framework within which any informal guidelines would be required to operate. Here, of particular significance is the shift in the law towards a "needs and means" analysis. While currently a source of uncertainty and confusion, this shift creates fertile ground for the introduction of income-sharing as a methodology for determining spousal support. Indeed, one can find in some of the recent case law, of which the 1999 Ontario Court of Appeal decision in Andrews is the leading example, the beginnings of judicial attempts to craft a quasi-formulaic approach to the determination of spousal support based on comparisons of post-divorce net incomes. Not surprisingly, these attempts have arisen in contexts where there are minor children and both child and spousal support are in issue, creating opportunities for the methodology under the child support guidelines to "spill over" into spousal support.

Part III will review the different theories that exist to justify the spousal support obligation, and the implications of each of these theories for developing guidelines. Of particular interest, given the increasing dominance in our case law of a non-compensatory, "needs and means" analysis, will be a set of theories that justify "income-sharing" models of spousal support. The focus on theory in Part III is driven by the conclusion that a major source of the uncertainty in the current law is conceptual confusion. Although this project is ultimately a practical one, rather than a theoretical one, some clarification of the basic principles of spousal support is seen as a necessary step in bringing more structure to the current law.

Part IV of the paper, which moves from theory to practice, examines some spousal support spousal guidelines which have actually been implemented, or in the case of the ALI proposals, which have been drafted with a view to actual implementation. The focus will be on the American experience with spousal support guidelines. The American guidelines, in their specifics, might in the end prove inappropriate for Canada given our different understandings of the nature of the spousal support obligation. But they do illustrate some of the possible ways of structuring guidelines and, at the very least, can assist in identifying the kinds of issues which guidelines need to address. The ALI proposals are of particular interest both because of their comprehensiveness and thoughtfulness, and because of the complexity of the proposed guidelines which recognize different bases for spousal support claims and which attempt to make the extent of the support obligation responsive to a number of factual variations. Much of Part IV is thus devoted to an extensive and detailed examination of the ALI proposals. A Canadian guideline, suggested by Linda Silver Dranoff and used by some lawyers in Ontario, will also be examined. The Dranoff guideline is interesting because its methodology and results are inspired by emerging trends in the Canadian, particularly Ontario, case law reflected by decisions such as Andrews—trends which are not part of American law and are therefore not reflected in American guidelines.

Part V will provide some social context for the development and operation of spousal support guidelines. It will review the information available--unfortunately quite limited--about the characteristics of marriages which end in divorce (such as the average duration of marriage and the presence or absence of minor children) and about the actual incidence of spousal support. This will provide useful background information on the context in which spousal support guidelines will operate and allow us to begin to think about the impact of any guidelines that might be proposed.

Part VI of the paper will lay out a process for thinking about the development of spousal support guidelines in Canada. It will discuss in more detail what is entailed in the process of creating informal guidelines which reflect local practice, including the challenges of such a process.

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