Spousal Support Advisory Guidelines July 2008


2.1 The Nature of the Guidelines: Informal and Advisory

There are many preconceptions about what spousal support guidelines are and how they work. Any talk of spousal support guidelines immediately brings to mind the Federal Child Support Guidelines. As we emphasized in the introduction, this comparison should be resisted. These Advisory Guidelines are very different.

Unlike the Federal Child Support Guidelines, the Spousal Support Advisory Guidelines do not involve formal legislative reform. They have not been legislated by the federal government. They are intended to be informal guidelines that operate on an advisory basis only, within the existing legislative framework.

We know that this concept of informal guidelines is one that many have difficulty understanding initially. Yet think of the early days of the Federal Child Support Guidelines before they were formally enacted. Many judges and lawyers used the draft proposed tables informally to assist in the determination of child support. Think also of the normal process of legal development and the ways that various presumptions can develop over time to structure judicial discretion. Such presumptions were starting to develop in the post-Moge law of spousal support, but since Bracklow, that process has broken down. The Advisory Guidelines project can be thought of as an attempt to facilitate the normal process of legal development by providing a broad structure that can then be adjusted over time as it is tested by individual cases.

The inspiration for the process chosen for the development of these Advisory Guidelines came from the experience of many of the American jurisdictions that have adopted spousal support guidelines. In the American context, spousal support guidelines have generally been the product of bench and bar committees of local bar associations. They were created with the intention of reflecting local practice and providing a more certain framework to guide settlement negotiations. While some of the American guidelines subsequently evolved into legislation, at the initial stages they were informal.

A similar process was adopted for the development of these Advisory Guidelines. They have been created through a process that involves working with judges, lawyers and mediators who have expertise in family law. The goal of the process was to articulate informal guidelines based on emerging patterns embedded in current practice. As for their application, the Advisory Guidelines do not have the force of law. They are advisory in nature, and they acquire their force through their usefulness.

The federal Department of Justice has supported the development of the Advisory Guidelines by providing financial support, communicating information on the project, participating in the discussions with the working group of family law experts, and keeping provincial and territorial governments informed.

We have called this process for developing the Advisory Guidelines one of working "from the ground up", in contrast to the "from the top down" process of formal legislative reform. The process, described in more detail below, was a long one involving many different stages. But before we get to that, we would like to say a bit more about the general nature of this project and some of the challenges it has raised.

2.2 The Challenges of the Project

2.2.1 Theory and practice

As stated in the introduction, this project was not directed at a theoretical re-ordering of the law of spousal support. Its aims were practical rather than theoretical — to provide a practical tool to assist family lawyers, mediators and judges who are confronted daily with the dilemma of determining appropriate levels of spousal support, as well as divorcing and separating spouses. As Bracklow has made clear, the Divorce Act does not mandate any one model of spousal support. We kept this in mind in constructing these guidelines. Reflecting current practice meant reflecting a wide range of competing views of spousal support. No one theory or model or ideology or formula could be used. The formulas, described in more detail below, incorporate elements of different theories. In addition, the exceptions recognize alternate or subsidiary models of spousal support. There is no theoretical purity in the guidelines we have constructed — they are the product of much compromise, compromises already found in the law of spousal support.

But increased consistency and predictability — the goals of the project — do require structure, even if it does not come from theoretical purity. The project was premised on the view that patterns and structure were beginning to emerge in the law, at least in a range of typical cases — the beginnings of guidelines.[13] But in the current culture of spousal support, these were often not discussed or articulated or openly acknowledged within the family law system. This project has attempted to build upon and facilitate those developments.

2.2.2 Reflecting current practice, changing current practice

Admittedly, there has been a central tension in the project between reflecting practice and changing practice. As informal rules of practice without the force of law, the Guidelines had to reflect current practice and could not stray too far from existing results over all. That said, there was also much in current practice that was inconsistent, arbitrary and hard to explain. The Advisory Guidelines were developed because of their potential to constrain some of those current practices. In building upon current practice the project has drawn on best practices or emerging trends. The Advisory Guidelines incorporate and reflect much of the current practice of spousal support while at the same time seeking greater consistency and logic in the results.

2.2.3 National guidelines and local spousal support cultures

Early on we faced the problem of squaring national guidelines with local and regional patterns of support. To the extent that local variations reflect higher or lower incomes, income-based guidelines such as these can adjust for that. The ranges provided by the Advisory Guidelines also leave some scope for adjustment towards local patterns and local conditions. It was also our hope that the Advisory Guidelines might lead to some cross-fertilisation of ideas amongst regions, forcing reconsideration of some local practices. The Divorce Act is a national statute and it can be argued that the spousal support received in one part of the country should not differ significantly from that received in another. We did worry, however, about whether regional and local variations were so great that any national advisory guidelines based on current practice would be of limited usefulness and that the only solution might lie in "regional" or "provincial" guidelines.

In the three years since the release of the Draft Proposal we have found that by and large the ranges generated by the Advisory Guidelines are able to accommodate the variations in local and regional practices. Some parts of the country inhabit the high end of the ranges, and some the low end, but lawyers and judges have generally found that some part of the "national" ranges is "about right" for their area. In the course of gathering feedback, we did receive comments about particular fact situations and specific subsets of cases, where the ranges seemed "high" or "low" in particular localities or regions. Some of the modest revisions that we have made introduce adjustments to accommodate these fact situations.

2.3 The Development of the Guidelines and the Release of the Draft Proposal

The first stage of the Advisory Guidelines project, which commenced in September 2001, involved the preparation of a lengthy background paper by Professor Rogerson: Developing Spousal Support Guidelines in Canada: Beginning the Discussion (December, 2002) (the "Background Paper"). The paper and the project were first discussed at the National Family Law Program in Kelowna, B.C. in July 2002, with the paper being completed in December 2002.

The paper laid the groundwork for exploring the possibility of developing spousal support guidelines. It reviewed in detail the basic building blocks that could be drawn upon in creating guidelines: emerging patterns in the current law, the various theories of spousal support, as well as various models of guidelines that are in effect or proposed in the United States and elsewhere. The Background Paper also laid out a possible process for the development of guidelines — one of building informal guidelines that would reflect current practice and that would operate on an advisory basis only within the existing legislative framework.

For those who want more detail about the multiple sources that have influenced the crafting of the Advisory Guidelines, we encourage you to read the Background Paper.[14]

The second stage of the project involved working with a small group of family law experts to discuss developing spousal support guidelines. Those discussions were supplemented by some additional small-scale consultations with other groups of lawyers and judges. The federal Department of Justice constituted what was initially a twelve (now thirteen) person Advisory Working Group on Family Law composed of lawyers, judges, and mediators from across the country. Its purpose was to advise the Department on family law matters generally, one of which was the Guidelines project. (A list of the members of the Advisory Working Group can be found in Appendix A.)

We brought to the project a knowledge of the law of spousal support based upon our own research and our comprehensive reading of reported spousal support decisions. Given that the guidelines were to build on current practice and that litigated cases represent only a very small percentage of the spousal support cases that make their way through the family law system, we knew we needed to draw on practice outside the realm of reported cases. We needed the on-the-ground experience of judges, lawyers and mediators who deal with spousal support issues every day and in many different contexts — advice to clients, negotiations with other lawyers, separation agreements, settlement conferences, mediations and collaborative law. The Advisory Working Group essentially played a consultative role. As directors of the project, we had had the responsibility for making the final judgement calls on the contents of the Advisory Guidelines.

We had five meetings with the Advisory Working Group during this stage of the project: the first in Ottawa (February 2003), the second in Montreal (May 2003), the third in Toronto (November 2003), the fourth in Ottawa (April 2004), and the fifth in Toronto (October 2004).

The discussions within the Advisory Working Group were directed first at determining the desirability and feasibility of developing advisory guidelines. Initially, not every member of the Group was supportive of Spousal Support Advisory Guidelines, but all were receptive to the general idea. There was also agreement that there were certain patterns in spousal support, at least at the level of outcomes and at least in certain kinds of cases. We then began the process of trying to craft advisory guidelines.

At this stage of the project we had already immersed ourselves in reported spousal support decisions to identify dominant patterns and to begin thinking about framing formulas that might capture those patterns. We had also read decisions on a province-by-province, territory-by-territory basis, looking for local patterns. We had identified certain categories of marriages and certain typical fact situations within them. To enhance our understanding of patterns in practice, we started, within the Advisory Working Group, with concrete fact situations to draw out group members’ views of likely outcomes. In reviewing the group’s responses we identified where the answers clustered. We used the responses, in addition to our knowledge of reported decisions, to develop mathematical formulas which would generate amounts of spousal support as a percentage of spousal incomes. From these responses we also developed formulas for duration, the concept of restructuring (trading off amount against duration to increase amount or to extend duration) and exceptions to the formulas.

We then tested out our formulas, restructuring and exceptions on more fact situations. Finally, to ensure that they were acceptable when compared to current practice, we took the revised formulas, restructuring and exceptions and demonstrated the range of outcomes they would generate. Throughout this process of finalizing the formulas, we continued to read decisions, this time to test whether reported decisions fell within the formula ranges and, if not, whether restructuring or exceptions might account for the outcomes.

Given the practical nature of the project, the primary focus of the process was on support outcomes rather than on appropriate theories of spousal support. While people might often disagree at the level of theory, there can be a fair amount of consistency in actual award levels. We also began with the easiest categories of marriages where patterns in the current law are the clearest and where we expected the greatest consistency in outcomes. We began with long marriages, then moved to short marriages without dependent children, and then to marriages with dependent children. Lastly, we tackled the most difficult category, medium duration marriages without dependent children, where there is the most diversity of outcomes and the least consistency in the current law.

We then began the process of crystallizing the guidelines that were emerging in our discussions within the Advisory Working Group into a comprehensive draft proposal for Spousal Support Advisory Guidelines. A "Sneak Preview" of the draft proposal was presented at the National Family Law Program in La Malbaie, Quebec in July 2004. The feedback we received there, combined with further discussions within the Advisory Working Group, resulted in some fine-tuning of the proposal. The final version of the document entitled "Spousal Support Advisory Guidelines: A Draft Proposal" was released in January, 2005.[15] At the time we realized that we could work longer on the Draft Proposal and continue to perfect it, but we were of the view that it was important to begin to broaden the discussion, by a public release of the proposed Advisory Guidelines.

2.4 The Second Stage of the Process: Information, Feedback and Revision

With the issuance of the Draft Proposal, the next stage of the process in the guidelines project began — one of discussion, experimentation, feedback and revision. The Draft Proposal was widely circulated amongst family lawyers, mediators and judges and posted on the Department of Justice website. There was also national media coverage of the release of the Draft Proposal.

Although the Advisory Guidelines were presented as a draft, subject to ongoing discussion and revision, it was a comprehensive and detailed draft. We fully expected that lawyers, judges and mediators would begin to use the Advisory Guidelines, despite their draft status, and in fact encouraged them to do so as the best way to test the Guidelines — to find out if they were useful, if they generated generally acceptable results within the current legal framework and to discover their flaws and limitations. We suggested that lawyers, for example, could begin to use the draft Advisory Guidelines to assist in structuring and guiding negotiations about spousal support, either explicitly as a principled basis for negotiation or, more modestly, as a litmus test of the reasonableness of offers or counter-offers derived by budgets or other methods. Judges were informed that they might use the guidelines in a similar fashion. The ranges could provide a check or litmus test to assess the positions of the parties in settlement conferences or in argument in hearings and trials. The Advisory Guidelines could also assist in adjudication, in providing one more way of approaching the discretionary decision to be made in spousal support cases.

The use of the draft Guidelines by lawyers and judges was facilitated by the speedy development and release of software programs to perform the calculations under the Advisory Guidelines’ formulas. These software programs found their genesis in the introduction of the Federal Child Support Guidelines in 1997 and were already being used by many lawyers and judges prior to the release of the Draft Proposal in 2005. Each of the software suppliers — DIVORCEmate, ChildView and AliForm — incorporated the Spousal Support Advisory Guidelines into their software. We have worked closely with the software suppliers throughout the project and they have been a regular and helpful source of feedback.

After the release of the Draft Proposal we traveled across the country talking to groups of lawyers and judges, groups both large and small. For the most part the sessions were focused on education and information: we explained how the Advisory Guidelines were constructed and how they could be used to improve the consistency and predictability of spousal support awards. We picked up comments and reactions from those who attended these sessions, but many of the early comments reflected lack of knowledge of the Guidelines, or misconceptions or lack of use.

We continued to read reported decisions: to track the courts’ use of the Advisory Guidelines, to look at cases where the Guidelines were considered but rejected, to note judicial criticisms and comments, and to refine the exceptions. Even after the release of the Draft Proposal, we continued to read reported spousal support decisions in every province and territory that made no mention of the Advisory Guidelines to determine whether the outcomes were nonetheless consistent with the formulas’ ranges.

Monthly updates were prepared, reporting on on-going developments, including judicial decisions considering the Guidelines, feedback that we received in our travels, and any problems or issues that were emerging. These updates were widely disseminated, posted not only on a web site created for the project[16] but also on a number of other websites used by lawyers and judges.[17]

Another meeting of the Advisory Working Group was held in March of 2006 to review on-going developments and discuss emerging issues. By the summer of 2006, a year and half after the release of the Draft Proposal, there was sufficient familiarity and experience with the Advisory Guidelines that it was possible to move into the next phase of the project — one of seeking informed feedback in a structured way with a view to making revisions to the Draft Proposal. A new document was prepared to structure that feedback process, the "Issues Paper," a draft of which was released at the National Family Law Program in Kananaskis, Alberta, in July 2006, and the final version in August 2006.[18] The paper identified issues for revision and, on some issues, possible options for revision.

In September of 2006 we began another cross-Canada tour, this time seeking out feedback from lawyers, mediators and judges, in small groups where the discussion could be very focused. We also invited written responses to the Draft Proposal. We received written comments from members of the public, from individual lawyers and from bar associations.[19]

As a result of the feedback we obtained from these sources, supplemented by our continued reading of a steady stream of reported spousal support decisions, we developed a detailed and practical sense of how the Advisory Guidelines were being used on the ground, and a more finely-tuned understanding of what revisions were necessary. With the assistance of the Advisory Working Group at two further meetings (Toronto, November 2006 and Montreal, June 2007) we began to reflect upon the feedback and work on issues for revision. This document, the final version of the Advisory Guidelines, reflects those revisions.

In the next section we discuss in more detail the responses to the Draft Proposal which have shaped the revision process. As will be shown, in general the Advisory Guidelines have had a very warm reception from lawyers, mediators and judges, and the revisions have involved fine-tuning rather than radical revision.

2.5 The Response to the Advisory Guidelines

2.5.1 Widespread use of the Advisory Guidelines

The Draft Proposal very quickly achieved one of it goals: the rekindling of serious debate in Canada about the law of spousal support as lawyers, judges and members of the public reacted to its contents. Discussions of developments and issues in spousal support law now invariably focus on the Advisory Guidelines.

Awareness has increased over time, not only within the professional community of family law judges, lawyers, and mediators, but also within the larger population of divorcing spouses trying to navigate their way through the family law system. Over 50,000 copies of the Draft Proposal were downloaded from the Justice web site in the first year after its release. Family law clients now often walk into their lawyers’ offices knowing about the Advisory Guidelines. As of February, 2008 there were over 400 judicial decisions from across the country in which the Advisory Guidelines have been considered, including strong endorsements from appellate courts in three provinces: British Columbia, New Brunswick and Ontario. The judicial response to the Guidelines will be discussed in more detail below.

But decided cases are only the tip of the iceberg, as few spousal support cases go to trial. Even more significantly, we learned in our travels across the country that the Advisory Guidelines are being widely used in discussions with clients, in negotiations with other lawyers, and in settlement conferences with judges. In general, the Advisory Guidelines have had a very warm reception from lawyers, mediators and judges, as people appreciate the benefit of greater consistency and predictability. Again and again, we heard that it is helpful to have a range to know that one’s claim, offer, settlement or decision is "in the ballpark".

2.5.2 Criticisms of the Guidelines

There have certainly been criticisms of the Advisory Guidelines. Some criticisms were easily dealt with: they were based on misunderstandings about the Draft Proposal and quickly disappeared with a more accurate understanding of the scheme. Other criticisms flagged problems and concerns with specific parts of the Draft Proposal and were very helpful in the process of revising and improving the scheme.

However, there were also more fundamental criticisms leading some to reject the Advisory Guidelines outright. Some critics were fundamentally opposed to the concept of any "guidelines" for spousal support, viewing the nature of the decision-making in spousal support cases as necessarily discretionary and individualized. They criticized the Guidelines for their rigidity — for offering "cookie cutter" answers that fail to deliver individual justice in each case. It was suggested that some judges would simply apply the Guidelines rather than engaging in the hard analytic work demanded by the Divorce Act. Other critics were troubled by the informal, advisory status of the guidelines, seeing them as an illegitimate attempt to change the law outside of the legislative process. These criticisms found judicial expression.[20]

These criticisms do not represent the dominant view of the Advisory Guidelines that has emerged as the Guidelines have become better understood. We believe it is important, nonetheless, to address the criticisms briefly here.

Criticisms of the Advisory Guidelines as "too rigid" have often assumed a more rigid scheme than the one we actually developed. Some of the concerns about undue rigidity also embodied a fear that the Guidelines would be applied in a rigid and inflexible fashion, whatever our intentions. Our consultations since the release of the Draft Proposal have revealed that unsophisticated use of the Advisory Guidelines by both judges and lawyers is a concern. However, the appropriate remedy, in the minds of most lawyers and judges, is further education rather than rejection of the Advisory Guidelines and the benefits of increased certainty and predictability that they have brought. We have also seen many cases where use of the Advisory Guidelines has enhanced the quality of judicial reasons as judges respond to the benchmarks provided by the Guidelines and decide whether or not the formula outcomes are appropriate.

Those who oppose any form of guidelines for spousal support and who stress the unique nature of every case ignore the fact that there are many typical cases with very similar facts. They also undervalue the importance of consistency. Consistency is related to a fundamental principle of law: equal treatment, the similar treatment of similar cases. The formulas found in the Advisory Guidelines generate outcomes across a wide range of cases in a consistent, principled fashion, serving as a healthy check upon one’s "gut feeling" or budget-based result.

As for the criticism that the Advisory Guidelines are an illegitimate attempt to change the law, it is true that the formulas at the core of the Advisory Guidelines can easily be taken, at first glance, as an entirely new scheme of income-sharing that has been superimposed on the Divorce Act. But an understanding of the intentions informing the project and the way in which the Advisory Guidelines were developed counters this first impression. The Advisory Guidelines are intended to reflect current law, not to change it. The formulas were developed to embody, or act as "proxy measures" of, the principles and factors which structure the current law of spousal support. The formula ranges are intended to capture the dominant ranges of support outcomes under the current law and practice.

It must be recognized that some criticisms of the Advisory Guidelines are really criticisms of the current law, reflecting a preference for a stricter compensatory approach, as if Bracklow never happened, or a pre-Moge approach that placed heavy emphasis on achieving a clean break. The open-ended discretion under the current law allows lawyers and judges to insert their personal theories of spousal support into their determinations of the amount and duration of spousal support. Guidelines, even Advisory Guidelines, serve to reveal and hence constrain outcomes at odds with the principles and dominant patterns of the current law.

2.5.3 The Advisory Guidelines in the courts

The case law under the Advisory Guidelines has been burgeoning since the release of the Draft Proposal. As of November 2008 there were over 400 judicial decisions in which the Advisory Guidelines have been considered. There are trial level decisions from every province and territory.[21] In addition, in their brief lifetime since the release of the Draft Proposal, the Advisory Guidelines have been considered by five provincial courts of appeal. There are 19 appellate level decisions: 12 from the British Columbia Court of Appeal, three from the New Brunswick Court of Appeal, and one each from the Nova Scotia, Alberta, Quebec and Ontario Courts of Appeal.[22]

The Advisory Guidelines have received strong endorsement from the British Columbia, New Brunswick and Ontario Courts of Appeal and have been referred to with approval by the Alberta and Nova Scotia Courts of Appeal. They have, however, received what can at best be described as a lukewarm reception from the Quebec Court of Appeal.[23] They have not yet been considered by the Supreme Court of Canada.[24]

The single most important judicial decision on the Advisory Guidelines to date remains that of the British Columbia Court of Appeal in Yemchuk v. Yemchuk,[25] released in late August of 2005. In this ground-breaking decision, which was the first appeal court consideration of the Guidelines, the B.C. Court of Appeal approved of the Advisory Guidelines "as a useful tool to assist judges in assessing the quantum and duration of spousal support." The Court of Appeal stated that the Advisory Guidelines "are intended to reflect the current law rather than to change it", "to build upon the law as it exists". The Court described the move away from a budget-laden analysis’ as "appealing".

In Yemchuk, the Court also clarified the legal status of the Guidelines in the courtroom, an issue that had been troubling lawyers and judges. The Advisory Guidelines were not "law" and would not be legislated. Were they then "evidence" or "expert evidence" and was there a need to "prove" the document? Justice Prowse, writing for the Court, described the Advisory Guidelines in terms similar to a compilation of precedent:

It should also be stressed that the Advisory Guidelines are intended to reflect the current law, rather than to change it. They were drafted by the authors after extensive analyses of the authorities regarding spousal support across the country, particularly the Moge and Bracklow decisions and those following thereafter. … While decisions can undoubtedly be found in which the result would not accord with the Advisory Guidelines, I am satisfied that their intention and general effect is to build upon the law as it exists, rather than to present an entirely new approach to the issue of spousal support… They do not operate to displace the courts' reliance on decided authorities (to the extent that relevant authorities are forthcoming) but to supplement them.

The Draft Proposal was thus not evidence, but part of legal argument and reasoning, and could be cited like any other article, text or government document. For the judge, the Advisory Guidelines could be used as one more piece of useful information in the determination of the amount and duration of spousal support.

In April of 2006 the New Brunswick Court of Appeal became the second appellate court to approve of the Advisory Guidelines with its decision in S.C. v. J.C.[26] Following the reasoning in Yemchuk on the issue of the Guidelines’ consistency with current law, Justice Larlee, writing for the Court of Appeal, approved of the Advisory Guidelines in the following terms:

The guidelines have been referred to in many ways: a check, a cross-check, a litmus test, a useful tool and a starting point. But it is my view that whichever term one likes to employ, their use, through the available software, will help in the long run to bring consistency and predictability to spousal support awards. Not only will they foster settlement, they will also allow spouses to anticipate their support responsibilities at the time of separation.

Since Yemchuk, the B.C. Court of Appeal has considered the Advisory Guidelines in 10 other decisions. The most important of these, in terms of the evolving legal status of the Guidelines, is the July 2006 decision in Redpath v. Redpath.[27] In Redpath the Court incorporated the Guidelines ranges into the standard of appellate review:

Cases such as Hickey, however, were decided prior to the introduction of the Advisory Guidelines. Now that they are available to provide what is effectively a ’range’ within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention.

The Court of Appeal thus recognized that the Advisory Guidelines now offer some bench marks for the range of acceptable trial results, making it possible to justify appellate intervention when trial decisions fall substantially outside those benchmarks.

In January of 2008, as we were putting the finishing touches to the final version of the Advisory Guidelines, the Ontario Court of Appeal released its decision in Fisher v. Fisher.[28] In Fisher the Ontario Court of Appeal followed Yemchuk in endorsing the Advisory Guidelines as a useful tool and a ’litmus test’ for the reasonableness of spousal support awards, while adding the important caveat that the Advisory Guidelines do not replace an individualized analysis and must be applied in their entirety.

As a result of the appellate endorsement of the Advisory Guidelines in British Columbia and New Brunswick, trial courts in those provinces now refer to the Guidelines in virtually every spousal support decision. But even in provinces where there has not been such strong appellate endorsement or any appellate endorsement at all — Ontario (prior to the release of Fisher), Nova Scotia, Saskatchewan, Alberta, and Newfoundland and Labrador — we have also seen wide-spread and growing use of the Guidelines by trial judges, in settlement conferences, on applications for interim support and in trials.

2.5.4 Results of the feedback: ’the ranges are about right’

The feedback we have gathered since the release of the Draft Proposal, has confirmed the basic structure of the Guideline formulas.[29] Some parts of the country inhabit the high end of ranges and some the low ends, but current practice across the country is by and large accommodated by the formula ranges. We did hear about problems with the application of the formulas to particular fact situations and specific subsets of cases, and we took these into account in the revision process, as will be discussed in the chapters that follow. As a result of the feedback we received, the revisions we have made to the Draft Proposal in this final version of the Advisory Guidelines have involved fine-tuning rather than radical revision: some modest tweaking of the formulas and the addition of some new exceptions.[30]

2.5.5 Unsophisticated use

The main problem that emerged both from the feedback process[31] and our reading of Guidelines cases is that the Advisory Guidelines are often used in an unsophisticated fashion by both lawyers and judges. Some lawyers and judges seem to focus only on the formulas and to ignore other parts of the Guidelines scheme, such as entitlement, exceptions and restructuring. The choice of a particular amount or duration within the range is often left unexplained. There has been a tendency to convert the Guidelines into default rules, even when such was not intended.

We have tried to be conscious of unsophisticated use in revising the Draft Proposal. While much of the actual content has not changed, we have changed the structure and presentation. We have tried to write more clearly, to respond to some of the misinterpretations and misunderstandings of the Draft Proposal. And we have highlighted topics that are often forgotten, topics like entitlement, using the ranges, restructuring, exceptions and self-sufficiency.[32]

To some extent, unsophisticated use was to be expected in the first year or two of the Advisory Guidelines. Over time, as lawyers and judges become more experienced, we would expect to see a more sophisticated use of all the various parts of the Guidelines — and indeed we have already started to see this happen in places such as British Columbia where the Guidelines are used extensively on a province-wide basis.

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