Developing Spousal Support Guidelines in Canada: Beginning the Discussion

VI. BUILDING CANADIAN SPOUSAL SUPPORT GUIDELINES FROM THE GROUND UP: THE PROCESS

Responding to the concerns of lawyers and judges about the current uncertainty in the law of spousal support, the federal Department of Justice has taken on the role of facilitating a discussion about the possibility of developing spousal support guidelines in Canada. The process that is envisioned for this project takes its inspiration from the process by which many of the American spousal support guidelines were created, as reviewed in Part IV above. There guidelines have largely been generated at the local level. They were, in their origin, the result of local bench and bar committees, composed of judges and lawyers, attempting to articulate informal guidelines which reflected current practice. The goal was not to make new law, but to "crystallize" current practice under existing legislation in order to provide a more certain backdrop for negotiation. Although over time some of the American guidelines have taken on a more formal status,[133] they started out as informal rules of practice which operated in an advisory capacity to provide a starting point for negotiation or decision-making.

This project, too, is based on the concept of building informal guidelines "from the ground up" by those who are immersed in current practice. The model of law reform that is being contemplated is not that of formal, legislated guidelines, such as was adopted for child support guidelines. The contentious nature of the spousal support obligation suggests that little would be accomplished by opening it up to broad-based legislative reform. Rather the objective of the project is to facilitate the development of guidelines that will reflect and structure current practice under the existing legislation. It is envisioned that such guidelines would be implemented on a regional basis to guide local practice. The exact status and force of such guidelines would be a matter open to discussion. The most obvious possibility is the route taken in several Kansas counties and Maricopa, County Arizona, where the guidelines are informal rules of practice that are understood to be "advisory" rather than binding. On this model, the guidelines developed through this project would simply constitute a starting point for discussion, negotiation, or decision-making.

As currently conceived, this project of "building guidelines from the ground up" involves several stages. The first stage is to bring together a small group of judges, lawyers and mediators (approximately 10) from across the country with an expertise in family law (the "working group") to begin the discussion about the development of guidelines. This group will first discuss the feasibility of the project. If there is support for the project, the working group will then begin a focused discussion of some of the specific issues that would arise in trying to develop guidelines. This discussion will take place over the course of several meetings. The process will require clarifying and reaching some rough consensus on the assumptions underlying spousal support and then developing guidelines to implement those assumptions. An essential feature of the process, given that the goal is to work from current practice, will be to identify different categories of cases, and in this way to work from the ground up in articulating basic principles and crafting guidelines that are appropriate for each category of case.

A series of more informal consultations focused on similar issues will also be held with lawyers, judges and mediators outside the working group. For example, similar discussions might be conducted with family law sections of provincial bar associations or with groups of judges in the context of judicial education seminars. These consultations will feed into the discussions of the working group to ensure that views from a range of regions and localities are considered.

If the discussions with the working group and the informal consultations reveal support for the development of guidelines and the ability to reach rough consensus on a number of starting points, the project will move to the next stage. Here the objective would be to pilot guidelines in one or more court sites. The ideas developed in the working group would provide the starting point for discussions in the chosen sites which would focus on developing guidelines responsive to the local norms of practice and which would receive the support of the local bench and bar.

The project as conceived is a challenging one on both the practical and conceptual levels. The project is premised on the hope that consensus is possible, particularly if the focus is on concrete outcomes in different categories of cases rather than on abstract theories, but there is some risk that it will not be possible to achieve even a rough consensus on underlying assumptions.

There is also, admittedly, a tension built into the project between reflecting current practice and changing the law. The project is put forward as one that builds on current practice. Yet current practice is diverse. In order to bring more structure and certainty into the law choices have to be made as to what are "emerging trends" or "best practices" and the law will thus be "re-structured" along those lines. The project thus contemplates a certain degree of change, but change that is consistent with the current legislative structure and basic framework that comes from decisions of the Supreme Court of Canada interpreting those provisions. One way to see the project is as facilitating or "speeding up" the normal common law process for the development of the law whereby the best understandings or interpretations of the current law eventually rise to the surface. The normal process of legal development has fallen apart in this area of law because of an excessive emphasis on discretion and individualized decision-making and a failure to focus on underlying principles and structure.

An off-shoot of the tension between "reflecting" and "changing" the law is a tension between local and national standards. Currently there are significant regional variations in how spousal support is determined, despite the fact that the Divorce Act is national legislation. This project is one that builds on current practice, suggesting that any proposed guidelines will be responsive to variations in local legal cultures. On the other hand, the focus on "best practices" or "emerging trends" envisions some restructuring of the law that will work to reduce regional variation. The project contemplates that a national dialogue on these issues will facilitate a certain amount of "cross-fertilization" of ideas between regions. An initial challenge for the project will be whether regional variations are so significant that there can be no consensus on "best practices" or "emerging trends" on the national working group.

While the project is not without its challenges and tensions, it would appear worthwhile to at least begin the discussion about bringing more structure into the law of spousal support and developing guidelines.

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