Developing Spousal Support Guidelines in Canada: Beginning the Discussion

EXECUTIVE SUMMARY

There are growing concerns among lawyers and judges that the current Canadian law of spousal support is excessively discretionary, creating an unacceptable degree of uncertainty and unpredictability. Responding to these concerns, 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 project will facilitate discussions about the possibility of developing spousal support guidelines.

The paper lays the groundwork for exploring the possibility of developing spousal support guidelines based on a methodology of "income sharing" between the spouses, 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 guidelines being contemplated are of an informal nature that would reflect current practice and that would operate on an advisory basis only within the existing legislative framework.

The paper reviews four "building blocks" for the development of spousal support guidelines: emerging patterns in the current law (Part II); theories of spousal support (Part III); models for structuring guidelines (Part IV); and social context (Part V). It then concludes with a review of the process being contemplated for the development of guidelines-one of building informal guidelines "from the ground up" (Part VI).

Part II: The Current Law of Spousal Support

Part II of the paper provides a brief overview of the current law of spousal support with a view to establishing the broad framework within which any informal guidelines would be expected to operate. Despite the conceptual confusion and discretionary nature of post-Bracklow spousal support law, some patterns can be discerned, particularly with respect to certain kinds of marriages. Post-Bracklow, spousal support law is distinguished by an expansive basis for entitlement in cases involving significant post-divorce income disparities and a reluctance to impose rigid durational limits on spousal support awards. Given these features of the current law, most of the serious issues in spousal support come down to issues of quantum. One can also discern a shift in the law towards a "needs and means" analysis. This shift has created fertile ground for the introduction of income-sharing as a methodology for determining spousal support. In fact, recent case law evinces 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

Part III: Theories of Spousal Support

An established feature of our law of spousal support is its recognition of diverse theoretical bases for the spousal support obligation. This diversity has been a major source of the uncertainty and conceptual confusion in the current law. Part III of the paper reviews the different theories that have been put forward to justify the spousal support obligation and explores the implications of each of these theories for the development of spousal support guidelines. This review suggests that, as compared to theories directed at compensation for economic loss, income-sharing theories more easily generate formulaic rules for post-divorce income sharing, with length of marriage often being a crucial factor in determining the extent of the sharing.

Part IV: Models for Spousal Support Guidelines

Part IV of the paper examines spousal support guidelines that have been implemented and developed in different jurisdictions, focusing particularly on the American experience. While the American guidelines, in their specifics, might in the end prove inappropriate for Canada given our different (i.e. more expansive) understandings of the nature of the spousal support obligation, they are useful in identifying some of the basic structural issues involved in crafting spousal support guidelines.

Of particular interest, given their comprehensive and thoughtful nature, are the recent proposals by the American Law Institute (ALI) for restructuring the law of spousal support which have a significant guideline component. The ALI proposals would determine entitlement and duration as well as quantum. More complex and nuanced than the other guidelines examined in Part IV, the ALI guidelines recognize different bases for spousal support claims and attempt to make the extent of the support obligations responsive to a number of factual variations. Specifically, one significant feature of the ALI guidelines is their reliance upon what is called a "durational factor" that renders the quantum of awards sensitive to the length of the marriage. The ALI guidelines might offer important lessons for structuring guidelines in the Canadian context given our recognition of multiple bases for spousal support and the concerns of critics that spousal guidelines are too rigid and cannot adequately respond to the diversity of fact situations.

One Canadian guideline, the "Dranoff" formula by Linda Silver Dranoff, is also examined. The Dranoff guideline is of interest because it is inspired by emerging trends in the Canadian, particularly Ontario, case law reflected by decisions such as Andrews which base generous spousal support entitlements on the presence of minor children. These Canadian trends are not reflected in American spousal support law or guidelines.

Part V: The Social Context for Canadian Guidelines

Part V of the paper reviews available information about the characteristics of marriages which end in divorce and about the actual incidence of spousal support. It appears, from the limited information available, that spousal support orders are relatively uncommon. One possible explanation for this finding is that spousal support is a higher-income phenomenon, making it likely that a significant amount of spousal support is found in agreements rather than court orders. Consequently, many spousal support arrangements are not captured in court-based data. The other explanation is that uncertainty about the spousal support obligation prevents claims from being made. If there is some accuracy to the studies showing a relatively low incidence of spousal support, the development of guidelines might have a fairly significant impact in increasing the incidence of spousal support and in making spousal support a relatively standard part of many divorce claims, at least in middle and high income cases.

Part VI: Building Canadian Spousal Support Guidelines from the Ground Up - The Process

What is entailed in the process of creating informal guidelines?

The model of law reform that is being contemplated by the Department of Justice is not that of formal, legislated guidelines, such as was adopted for child support guidelines. The objective of the project is to facilitate the development of informal 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 most obvious possibility is the route taken by several Kansas counties and Maricopa, County Arizona, where the guidelines are informal rules of practice created by local bench and bar committees 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 from across the country with an expertise in family law to begin the discussion (the "working group"). The process will require clarifying and reaching some rough consensus on the assumptions underlying spousal support and then developing guidelines to implement those assumptions. A central 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. 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.

What are the challenges of such a process?

The project faces a number of challenges. First, there is some risk that it will not be possible to achieve even a rough consensus on underlying assumptions. Secondly, the project has a built-in tension between reflecting current practice and changing the law. In order to resolve this tension, the project 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. Thirdly, the project must negotiate the tension between local and national standards. There is a risk that current regional variations are so significant that there can be no consensus on "best practices" or "emerging trends" at the national working group level. However, despite these challenges and tensions, it would appear worthwhile to at least begin the discussion about bringing more structure into the law of spousal support and the possibility

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