Spousal Support Advisory Guidelines July 2008

INTRODUCTION

In 2001 the federal Department of Justice identified the need for a project to explore the possibility of developing some form of advisory spousal support guidelines. The aim of the project was to bring more certainty and predictability to the determination of spousal support under the Divorce Act[1]. The project was a response to growing concerns expressed by lawyers, judges, mediators and the public about the lack of certainty and predictability in the current law of spousal support, creating daily dilemmas in advising clients, and negotiating, litigating or — in the case of judges — deciding spousal support issues. We were retained to direct that project.

In January 2005, the Draft Proposal was released, setting out a comprehensive set of Spousal Support Advisory Guidelines. These Advisory Guidelines have been used by spouses, lawyers, mediators and judges across Canada over the past three years. We received detailed comments and feedback on the Draft Proposal. What you hold in your hands is the final version of the Spousal Support Advisory Guidelines. It is the revised version of the earlier Draft Proposal and is now the authoritative document on the Spousal Support Advisory Guidelines. The Draft Proposal is now only of historical interest.

The term "guidelines" inevitably brings to mind the Federal Child Support Guidelines, enacted in 1997[2]. We need to emphasize at the beginning that this comparison must be resisted. This project does not involve formal, legislative reform. Unlike the federal, provincial and territorial child support guidelines, these Advisory Guidelines are not legislated. They are instead intended to be informal guidelines that operate on an advisory basis only, within the existing legislative framework. They do not have the binding force of law and are applied only to the extent that lawyers and judges find them useful. They are guidelines in the true sense of the word. We have called them Advisory Guidelines to differentiate them from the child support guidelines.

Nature and status of the Advisory Guidelines

The Advisory Guidelines are intended as a practical tool to assist in determinations of spousal support within the current legal framework – to operate primarily as a starting point in negotiations and settlements. The project was not directed at a theoretical re-ordering of the law of spousal support or at creating a new model of spousal support. The formulas we have developed are intended as proxies for the spousal support objectives found in the Divorce Act as elaborated upon by the Supreme Court of Canada. Our goal was to develop guidelines that would achieve appropriate results over a wide range of typical cases.

Given the informal nature of these advisory guidelines, they have been developed with the recognition that they must be broadly consistent with current support outcomes while also providing some much needed structure and consistency to this area of law — a not insignificant challenge. As informal guidelines, they do not address entitlement, but deal only with the amount and duration of support once entitlement has been established. In the same vein they confer no power to re-open existing spousal support agreements beyond what exists under current law.

Content of the Advisory Guidelines

The Advisory Guidelines are based on what is called "income sharing". Contrary to popular conception, income sharing does not necessarily mean equal sharing. It simply means that spousal support is determined as a percentage of spousal incomes. The percentages can vary according to a number of factors. The Advisory Guidelines offer two basic formulas that base spousal support on spousal incomes and other relevant factors such as the presence or absence of dependent children, and the length of the marriage. The formulas deal with the amount (sometimes referred to as quantum) and duration of spousal support once entitlement to support has been established. The formulas generate ranges of outcomes, rather than precise figures for amount and duration, which may be restructured by trading off amount against duration.

The Guidelines are advisory only and thus always allow for departures from the outcomes generated by the formulas on a case-by-case basis where they are not appropriate. While we have tried to specify exceptions to assist the parties and the courts in framing and assessing any departures from the formulas’ ranges, they are not exhaustive of the grounds for departure. There is still considerable room for the exercise of discretion under the Advisory Guidelines but it will be exercised within a much more defined structure than existed before — one with clearer starting points. Budgets, which are currently the primary tool in spousal support determinations, increasingly play a reduced and less central role.

Documents accompanying this final version

There are two documents being released together:

  1. this completely-revised final version of the reference document, entitled "The Spousal Support Advisory Guidelines"; and
  2. a brief "Report on Revisions" which notes the changes made from the Draft Proposal to this final version.

Still to come, in the near future, is an "Operating Manual", which will provide a summary step-by-step guide to the Advisory Guidelines, cross-referenced to the final version.

Structure of this final version

While much of the content of this final version has not changed from the Draft Proposal, we have moved it around, by changing the structure and presentation. Some issues that seemed important at the time of the Draft Proposal are no longer issues, and thus some parts of the Draft Proposal have been removed or shortened. Now that the Advisory Guidelines are better known and widely used, we have highlighted some topics that are often forgotten, topics like entitlement, using the ranges, restructuring, exceptions and self-sufficiency. We have also drawn on the experience with the Advisory Guidelines in the three years since the release of the Draft Proposal in explaining the operation of the scheme.

Before we reach the actual content of the Spousal Support Advisory Guidelines, there are many preliminary matters that must be addressed so that the Advisory Guidelines can be properly understood. In Chapter 1 we provide some necessary background to the project. We review the current legal framework for spousal support — the framework within which the Advisory Guidelines operate — and also discuss the problems within the current law that led to this guidelines initiative.

In Chapter 2 we discuss in more detail the nature of this project, the challenges it raised, and the process by which the Advisory Guidelines were developed.

With Chapter 3, we move into the actual substance of the Advisory Guidelines, providing an overview of their basic structure.

Chapters 4 and 5 deal with two critical threshold questions to be considered before reaching the Advisory Guidelines: is there entitlement to spousal support? and do the Advisory Guidelines apply in this case? The issues of entitlement and the basis for entitlement arise, not only at this threshold point, but also throughout the application of the Guidelines.

Chapter 6 highlights another critical step in the Guidelines analysis, the determination of the incomes of the spouses.

Chapter 7 deals with the first of the two basic formulas around which the Advisory Guidelines are structured — the without child support formula, which applies in cases where there are no dependent children and hence no concurrent child support obligation.

Chapter 8 details the other basic formula — the with child support formula, which applies in cases where there are dependent children.

Chapter 9 focuses upon how these formula ranges can be used, and the factors that can affect the location of the precise amount and duration within the ranges. Chapter 10 then takes the next step, how the formula ranges can be restructured, by trading off amount against duration, to produce larger amounts or longer durations or lump sum amounts.

Chapter 11 explains how to apply the ceilings and floors, the upper and lower boundaries of the range of incomes for which the formulas operate. Further, this chapter offers guidance on the determination of spousal support in cases above the ceiling or around the floor.

Chapter 12 sets out the exceptions to the use of the formula ranges. The exceptions have been ignored too often in practice and we have therefore given them greater emphasis in this final version. Some of the older exceptions have been clarified, while new ones have been added.

In Chapter 13, we have gathered together all the aspects of the Advisory Guidelines that serve to promote self-sufficiency. Self-sufficiency is an important and difficult issue in the law of spousal support and we thought it deserved a separate chapter in the final version.

Chapter 14 looks at the subsequent uses of the Advisory Guidelines in the process of variation and review. The Advisory Guidelines may have more limited application at these later stages, as issues of continuing entitlement often arise.

Chapter 15 discusses the application of the Advisory Guidelines to divorce cases in Quebec, and some of the adjustments that had to be made for Quebec cases.

At the end of the document, after the conclusion, there can be found a glossary of terms that offers a handy reference point for many of the terms used in this document. Some of these terms will be familiar to family lawyers and judges but not to other readers; others are new terms specific to these Spousal Support Advisory Guidelines.