Spousal Support Advisory Guidelines July 2008

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8. THE WITH CHILD SUPPORT FORMULA

The dividing line between the two proposed formulas under the Advisory Guidelines is the presence of a child support obligation.^[77] Where the spouses have not had children or the children have grown up and are on their own, the without child support formula will apply. Where a spouse is paying child support, the with child support formula will apply.

From a technical perspective, there must be a different formula for spousal support in these cases, a formula that takes into account the payment of child support and its priority over spousal support as set out in s. 15.3 of the Divorce Act. Further, because of tax and benefit issues, we have to use net rather than gross incomes. Practically, the payment of child support usually means reduced ability to pay spousal support. And, theoretically, there are different rationales for the amount and duration of spousal support where there are still dependent children to be cared for and supported.

This category of cases dominates in practice, in support statistics and in jurisprudence. Any guidelines must generate a workable formula for amount and duration for this category, a formula that can adjust across a wide range of incomes and family circumstances. For the most part, marriages with dependent children will involve spousal support paid by a parent who is also paying child support to the recipient spouse. The basic formula in this chapter is constructed around this typical situation. Variations on the basic formula are required to accommodate cases of shared and split custody. There are also a sizeable number of cases where the spouse paying spousal support has primary parental responsibility for the children. In these custodial payor situations, an alternative formula must be constructed. Finally, we have added one more hybrid formula, applicable in cases where the only remaining children are away at university or otherwise have their child support determined under section 3(2)(b) of the Child Support Guidelines.

The with child support formula is thus really a family of formulas, adjusted for different parenting arrangements.

8.1 The Compensatory Rationale for Spousal Support

Where there are dependent children, the primary rationale for spousal support is compensatory. After Moge, spouses must, as Chief Justice McLachlin put it in Bracklow, "compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union."^[78] The main reason for those foregone careers and missed opportunities is the assumption of primary responsibility by one spouse for the care of children during the marriage. Where one spouse, in a marriage with children, has become a full-time homemaker or has worked outside the home part time or has worked as a secondary earner, there will be disadvantage and loss at the end of the marriage, usually warranting compensatory support. This compensatory rationale is encompassed by the first of the four objectives of spousal support, in s. 15.2(6)(a) of the Divorce Act.

Under compensatory theory, it is usually necessary to estimate the spouse’s disadvantage or loss by determining what the recipient’s career or employment path might have been, had the recipient not adopted his or her role during the marriage — not an easy task. The ideal evidence would be individualized economic evidence of earning capacity loss, but few litigants can afford such evidence and often it would be highly speculative. Some spouses never establish a career or employment history. For others, their pre-marital and marital choices were shaped by their future expected role during marriage. And there are short marriages, where past losses are relatively small and most of the spouse’s child-rearing and any associated losses are still to come in the future.

As was explained in Chapter 1, after Moge, courts had to develop proxies to measure that loss where there was no clear and specific career or employment path. Need became the most common proxy, calculated through the conventional budget analysis. Sometimes standard of living was used, with the post-separation position of the recipient spouse measured against the marital standard or some reasonable standard of living. In practice, crude compromises were made in applying the compensatory approach.

More recently, what we have called the parental partnership rationale has emerged in the literature and in the case law. On this approach, the obligation for spousal support flows from parenthood rather than the marital relationship itself. It is not the length of the marriage, or marital interdependency, or merger over time, that drives this theory of spousal support, but the presence of dependent children and the need to provide care and support for those children. Unlike the conventional compensatory approach, parental partnership looks at not just past loss, but also the continuing economic disadvantage that flows from present and future child-care responsibilities. For shorter marriages with younger children, these present and future responsibilities are more telling. Further, the parental partnership rationale better reflects the reality that many women never acquire a career before marriage, or mould their pre-marital employment in expectation of their primary parental role after marriage.

The parental partnership rationale is firmly anchored in one of the four statutory objectives in s. 15.2(6) of the Divorce Act, where clause (b) states a spousal support order should:

apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage.

The 1997 implementation of the Federal Child Support Guidelines has reinforced this rationale. Under the Guidelines, only the direct costs of child-rearing — and not even all of them — are included in child support. The indirect costs of child-rearing were left to be compensated through spousal support, as was recognized by the 1995 Family Law Committee’s Report and Recommendations on Child Support. Principal amongst these indirect costs is the custodial parent’s reduced ability to maximize his or her income because of child-care responsibilities. Now that child support is fixed under the Child Support Guidelines and determined by a different method than before 1997, spousal support has to be adjusted to reflect the concerns identified by the parental partnership model.

With the implementation of the Federal Child Support Guidelines came the increased use of computer software. The software regularly and graphically displays information like net disposable income, monthly cash flow and household standards of living. This information has made spouses, lawyers, mediators and courts more conscious of the financial implications of child and spousal support, in turn reflected in the use of these concepts in determining the amount of spousal support. Before the Federal Child Support Guidelines, and even afterwards for a while, most courts were not prepared to award more than 50 percent of the family’s net disposable income to the recipient spouse and children, leaving the single payor spouse with the other 50 percent. With the new software, many courts began consciously to allocate more than 50 percent of a family’s net disposable income to the recipient spouse and children, and even as much as 60 percent, as in the Ontario Court of Appeal decision in Andrews v. Andrews^[79] and in numerous trial decisions across the country.^[80]

These cases also reveal a non-compensatory element found in some decisions where both child and spousal support are paid to the same parent. There is a household standard of living element within the parental partnership rationale that should be openly acknowledged. Both child and spousal support go into the same household, to support the standard of living of both parent and child. In some cases, spousal support is used as a residual financial remedy to shore up the standard of living that the children experience in the recipient’s household.

8.2 Background to the Basic Formula

There is no simple way to construct a formula for spousal support where the support payor is also paying child support. First, child support must be determined, as it takes priority over spousal support in assessing the payor’s ability to pay. Second, child support is not taxable or deductible, but spousal support is taxable to the recipient and deductible for the payor. Third, child and spousal support must be determined separately, but it is very difficult in any formula to isolate spousal finances cleanly from support of children.

This formula for cases with child support — the with child support formula — differs from the without child support formula set out in Chapter 7. First, the with child support formula uses the net incomes of the spouses, not their gross incomes. Second, the with child support formula divides the pool of combined net incomes between the two spouses, not just the difference between the spouses’ gross incomes. Third, in the with child support formula, the upper and lower percentage limits for net income division do not change with the length of the marriage.

Unlike the without child support formula, this formula must use net income. While gross income would be simpler to understand, calculate and implement, nothing remains simple once child support has to be considered. Different tax treatment demands more detailed after-tax calculations, and ability to pay must be more accurately assessed. Net income computations will usually require computer software, another unavoidable complication.

Thanks to that same computer software, many lawyers had become familiar with net disposable income or monthly cash flow calculations before the release of the Draft Proposal. Judges were using such calculations to underpin their spousal support decisions. In the software programs, these numbers included child and spousal support to produce what can be called family net disposable income or monthly cash flow. This larger pool of net income is then divided between the spouses. Often, more than 50 percent of this family net disposable income is allocated to the recipient spouse and children by way of combined child and spousal support, or sometimes as much as 60 percent and occasionally even more. Under the formula proposed here for spousal support, we divide a different and smaller pool of net income, after removing the spouses’ respective child support obligations — what we call individual net disposable income or INDI.

We considered using the more familiar family net disposable income as the basis for the with child support formula, rather than this newer variation of individual net disposable income. In the end we opted for individual net disposable income. First, the family net disposable income of the recipient spouse includes both child and spousal support, bulking up the recipient’s income in a somewhat misleading fashion and masking the impact of spousal support upon the recipient parent’s individual income. Second, allocating family NDI between spouses blurs the distinction between child and spousal support, between child and adult claims upon income. Individual NDI attempts to back out the child support contributions of each spouse, to obtain a better estimate of the income pool that remains to be divided between the adults. Third, after separation, the spouses see themselves, not as one family, but more as individuals with distinct relationships with their children and their former spouses. Fourth, separating out each spouse’s individual net disposable income, after removal of child support obligations, produced a more robust and sophisticated formula, one that adjusted better across income levels and numbers of children.

8.3 The Basic Formula

Set out in the box below is a summary of how this basic with child support formula works. Remember that this formula applies where the higher income spouse is paying both child and spousal support to the lower income spouse who is also the primary parent. By primary parent, we mean the spouse with sole custody or the spouse with primary care of the children in a joint custody arrangement.

8.3.1 Calculating individual net disposable income

Basic to this formula is the concept of individual net disposable income, an attempt to isolate a pool of net disposable income available after adjustment for child support obligations.

The starting point is the Guidelines income of each spouse as is explained in Chapter 6 above. In the interests of uniformity and efficiency, we basically use the same definition of income as that found in the Federal Child Support Guidelines. Next, we deduct or back out from each spouse’s income their respective contributions to child support.

For the child support payor, that is usually the table amount, plus any contributions to special or extraordinary expenses, or any other amount fixed under any other provisions of the Federal Child Support Guidelines. For the child support recipient, a notional table amount is deducted, plus any contributions by the recipient spouse to s. 7 expenses. In reality, the recipient will likely spend more than these amounts through direct spending for the children in her or his care. But by this means we make an adjustment, however imperfect, for the recipient’s child support obligation. A formula could be constructed without this notional child support number, but such a formula would have adjusted to the number of children and income levels with less precision and with less transparency about the role of the recipient parent.

Second, income taxes and other deductions must be subtracted from the incomes of both the payor and the recipient to obtain net incomes. As spousal support is transferred from one spouse to another, because of tax effects, the size of the total pool of individual net disposable income actually changes slightly, which complicates these calculations. The current software does these calculations automatically, as differing hypothetical amounts of spousal support are transferred, a process called "iteration".

Clearly permissible deductions are federal and provincial income taxes, as well as employment insurance premiums and Canada Pension Plan contributions. Union dues and professional fees are already deducted from Guidelines income under the adjustments of Schedule III to the Federal Child Support Guidelines. Deductions should be recognized for certain benefits, e.g. medical or dental insurance, group life insurance, and other benefit plans, especially those that provide immediate or contingent benefits to the former spouse or the children of the marriage.

More contentious are deductions for mandatory pension contributions. We concluded that there should not be an automatic deduction for such pension contributions, but the size of these mandatory deductions may sometimes be used as a factor to justify fixing an amount towards the lower end of the spousal support range.

We reached this conclusion after considerable discussion. Like EI, CPP and other deductions, pension contributions are mandatory deductions, in that the employee has no control over, and no access to, that money. But, unlike other deductions, pension contributions are a form of forced saving that permit the pension member to accumulate an asset. Further, after separation, the spouse receiving support does not usually share in the further pension value being accumulated by post-separation contributions. Finally, there are serious problems of horizontal equity in allowing a deduction for mandatory pension contributions by employees. What about payors with non-contributory pension plans or RRSPs or those without any pension scheme at all? And what about the recipient spouse — would we have to allow a notional or actual deduction for the recipient too, to reflect her or his saving for retirement? In the end, we decided it was fairer and simpler not to allow an automatic deduction for pension contributions.

Third, we do include in each spouse’s income the amounts identified for government benefits and refundable credits. Included are the Child Tax Benefit, the National Child Benefit Supplement, the GST credit, the refundable medical credit, the Child Disability Benefit, the various provincial benefit and credit schemes, and the new Universal Child Care Benefit. Under the Federal Child Support Guidelines these benefits and credits are generally not treated as income. For the reasons set out in Chapter 6 on Income above, a different approach is warranted for spousal support purposes.

8.3.2 The Basic Formula: Dividing Individual Net Disposable Income

Once the individual net disposable income (INDI) of each spouse has been determined, the next step is to add together these individual net disposable incomes. Then we have to iterate, i.e. to estimate hypothetical spousal support repeatedly, in order to determine the amount of spousal support that will leave the lower income recipient spouse with between 40 and 46 percent of the combined pool of individual net disposable income.

How did we arrive at the percentages for the range, from 40 to 46 percent of the individual net disposable income? This was a critical issue in the construction of this formula. In our earlier Sneak Preview in the summer of 2004, we had suggested a higher range, from 44 to 50 percent of INDI. We ultimately opted for a lower range, after much discussion with the Advisory Working Group, some limited feedback from the Sneak Preview, further reviews of the case law in various provinces, and some more hard thought about the upper and lower bounds for these ranges. Since the release of the Draft Proposal and after our meetings across Canada, we can confirm that this percentage range is appropriate.

We found that a range of 40 to 46 percent of individual net disposable income typically covered spousal support outcomes in the middle of the very wide range of outcomes now observed in most Canadian provinces. To capture the middle of the range on a national basis means that some areas will find the upper bound (46 percent) a bit low and other areas will consider even the lower bound (40 percent) at the higher end of their local range.

Prior to the Sneak Preview, we had experimented with a range of 40 to 50 percent of INDI. But that produced far too broad a range in absolute dollar terms. One of the objectives of the Advisory Guidelines is to develop more predictability and consistency in spousal support outcomes and a ten-percentage point range simply failed to do that. A narrower five or six percentage point range is about right.

The lower boundary of this range — 40 percent of INDI — does ensure that the recipient spouse will receive not less than 50 percent of the family net disposable income in all cases involving two or more children, and slightly below that in one-child cases.

The upper end of this range — 46 percent of INDI — falls short of an equal split, which would leave both spouses in the same individual position. Despite the intellectual attraction of a 50/50 split, there are a number of practical problems that convinced us that it was not appropriate to set the upper limit of the range there. First, very few courts are currently prepared to push spousal support amounts that high. Second, there is a live concern for the access-related expenses of the payor spouse, expenses that are not otherwise reflected in the formula. Most payors are exercising access and most are spending directly upon their children during the time they spend with their children. Third, there are concerns for the payor in the situation where the payor has employment-related expenses and the recipient spouse is at home full time and receiving large spousal support.

We should repeat here a central difference between this formula and the without child support formula: the length of the marriage does not affect the upper and lower percentages in this with child support formula.

We also wish to stress the inter-relationship between the percentage limits and the precise elements of our version of individual net disposable income. If a notional table amount were not removed from the recipient spouse’s income, or if government benefits and refundable credits were excluded, then the formula percentages would have to change. Our objective throughout has been to develop formulas that can capture the bulk of current outcomes, while at the same time demonstrating robustness in adjusting across incomes and child support amounts and custodial situations.

As a result of computer software, lawyers and courts became accustomed to calculating net disposable income or monthly cash flow on a family basis: the payor’s net disposable income after deduction of child and spousal support and taxes, and the recipient’s after addition of child and spousal support (and deduction of taxes). How do these more familiar family net disposable income percentages compare to our range of individual net disposable income divisions? Typically, the 46 percent of INDI at the upper end of our proposed formula generates a family net disposable income for the primary parent spouse of 56 to 58 percent where there are two children. At the lower end of the range, a spousal support amount that leaves the recipient spouse with 40 percent of INDI will typically leave that spouse and the two children with 52 or 53 percent of the family net disposable income. For comparison purposes, we have provided family net disposable income proportions in the examples below.

We recognize that Quebec has a different scheme of determining child support, which in turn has implications for fixing spousal support. The application of the Advisory Guidelines in divorce cases in Quebec is dealt with in more detail in Chapter 15.

8.4 Amounts of Spousal Support: Examples of the Basic Formula

At this point it helps to give a few examples of the ranges of monthly spousal support generated by this basic formula. Then we will move to the issue of duration. For illustration purposes, we assume that these parents and children all live in Ontario, as the use of one jurisdiction simplifies the exposition of the formula’s operation.

In the earlier Draft Proposal, the formula calculations were done partially with software and partially by hand. With the release of the Draft Proposal, Canada’s three major family law software suppliers incorporated the Spousal Support Advisory Guidelines into their programs, so that the calculations can be done easily and with greater precision. In addition, the ranges for amount have changed since the January 2005 release of the Draft Proposal, due to changes in child support table amounts in May 2006, various changes to federal and provincial taxes and changes in child benefits. The result is that the numbers in these examples are different from those set out in the Draft Proposal.

Using the family net disposable income figures (or the similar monthly cash flow figures) more familiar to current software users, spousal support of $1,025 monthly along with the child support would leave Alice and the children with $4,003 per month and Ted with $2,976 per month, or 57.4 per cent of the family’s net disposable income in favour of Alice and the children. At the lower end of the range, with spousal support of $474 per month, the net disposable income of the family would be split 52.6/47.4 in favour of Alice and the children, leaving Ted with $3,326 monthly and Alice and the children with $3,684. The amount of spousal support is obviously affected by the number of children. If Ted and Alice had only one child, the spousal support range would be higher, from $888 to $1,463 per month. If the couple had three children, Ted’s ability to pay would be reduced, bringing the range down to $79 to $626 monthly. Four children would lower that range even further, down to a range from zero to $222 per month.

The spousal support range will also be lowered by any payment of section 7 expenses. In our Example 8.1, if Alice were paying child care expenses of $8,000 per year for the two children and Ted paid his proportionate share of the net cost, the formula range would reduce to $319 to $925 per month for spousal support.

Again, by way of comparison to the more familiar numbers, if Bob were to pay child support of $601 and spousal support of $34 monthly, at the upper end of the range, he would be left with $1,951 per month, while Carol and the two children would have family net disposable income of $2,325 monthly, or 54.4 percent of the family’s net disposable income.

If Drew were to pay spousal support of $1,213 monthly, he would have $2,394 per month, while Kate and the children would have family net disposable income of $3,084 monthly, or 56.3 percent of the total family NDI. At the lower end of the range, spousal support of $908 per month would leave Drew with $2,604 in family NDI, while Kate and the children would have $2,780 monthly, or 51.6 percent of the family’s NDI.

The formula generates ranges for the amount of spousal support. Chapter 9 below discusses the factors to be considered in fixing a particular amount within the ranges.

8.5 Duration under the Basic Formula

In most cases where there are dependent children, the courts order "indefinite" spousal support, usually subject to review or sometimes just left to variation. Even when the recipient spouse is expected to become self-sufficient in the foreseeable future, courts typically have not often imposed time limits in initial support orders. Where the recipient spouse is not employed outside the home, or is employed part-time, the timing of any review is tied to the age of the children, or to some period of adjustment after separation, or to the completion of a program of education or training. As the recipient spouse becomes employed or more fully employed, spousal support will eventually be reduced, to top up the recipient’s employment earnings, or support may even be terminated. In other cases, support is reduced or terminated if the recipient spouse remarries or re-partners.

In practice, where there are dependent children, few "indefinite" orders are permanent. Many intervening events will lead to changes or even termination. Some of these issues are canvassed in Chapter 14, which deals with variation, review, remarriage, second families, etc. By making initial orders indefinite, the current law simply postpones many of the difficult issues relating to duration and recognizes the fact-specific nature of these determinations.

Under the without child support formula, discussed in Chapter 7, there are time limits keyed to the length of the marriage, i.e. .5 to 1 year of spousal support for each year the spouses have cohabited, subject to the exceptions for indefinite (duration not specified) support.

Under the with child support formula, one option was simply to leave duration indefinite in all cases, with no durational limits of any kind, thereby avoiding all of the difficult issues of duration where there are dependent children. Such an approach would, however, be inconsistent with our durational approach under the without child support formula. It would also be inconsistent with the underlying parental partnership rationale for spousal support. This rationale emphasizes the ongoing responsibilities for child-care after separation and the resulting limitations on the custodial or residential parent’s earning abilities. When those responsibilities cease, there must be some other reason for support to continue, such as the length of the marriage.

Our approach to duration for marriages with dependent children maintains current practices, while introducing the general idea of a range for duration. Initial orders continue to be indefinite (duration not specified) in form, subject to the usual processes of review or variation. That does not change. What our approach adds is the acceptance of generally understood outside limits on the cumulative duration of spousal support that will inform the process of review and variation.^[81]

The durational limits under this formula combine the factors of length of marriage and length of the remaining child-rearing period, under two different tests for duration. For longer marriages, it makes sense that a recipient spouse should get the benefit of the time limits based upon length of marriage that might be obtained under the without child support formula, as these will typically run well beyond the end of any child-rearing period. More difficult are shorter marriages where the recipient parent has the care of young children. To deal with these cases we have, under this formula, developed additional durational limits based on the responsibilities of child-rearing and the age of the children.

In what follows we explain in more detail the different elements of the admittedly complex approach to duration under this formula, and then draw these elements together in a concise summation in s. 8.5.4.

8.5.1 The creation of a range for duration in the basic formula

In this final version we have made some changes to the language used to describe and present the two tests for duration under this formula. More importantly, we have also added a lower end for the range under the basic with child support formula.

In the Draft Proposal, we did not propose any minimum duration or lower end of the range for duration under the with child support formula, only a maximum outside duration. Through the feedback process, we became convinced that some range for duration was required, for three reasons. First, absent a lower end of the range, the maximum duration was not treated as an outside time limit, but instead as a default time limit, i.e. a recipient was seen as possessing an entitlement to receive spousal support for the length of the marriage or until the youngest child finished high school, no matter what. That was never our intention. Second, absent a lower end and following upon the default approach just described, there was no room created for negotiation around duration between the spouses, unlike under the without child support formula. Third, after further feedback across Canada and further research, we did get a strong sense of what the lower end of the range could be under the current law.

The real crux of any range is for shorter marriages with pre-school children, where we feared that these recipients might be seriously disadvantaged by creating a lower end of the range. This remains a concern, especially since it appears that the duration of support in these cases is lengthening, as the courts continue to develop an appreciation of the serious continuing disadvantage flowing from a spouse’s on-going child care obligations.

We emphasise that the durational limits under this formula must be seen as "softer", more flexible than under the without child support formula given the prominence of the compensatory rationale under this formula. First, the durational limits are not intended to be implemented as time limits on initial orders, but rather to give structure to an on-going process of review and variation. Second, determinations of duration in cases with dependent children are very fact-specific and vary enormously based upon the education, skills and work-experience of the dependent spouse, the ages of the children and the available arrangements for child-care. Our suggested durational range is at best a typical range that will not be appropriate in all cases. And third, this is an area of law in flux. We see the law over time giving increased emphasis to what we have termed the "parental partnership" concept, which recognizes the ongoing responsibilities for child-care after separation and the resulting limitations on the custodial or residential parent’s earning abilities.

As we explain in more detail below, there are two tests that establish the range for duration under the basic with child support formula. We have renamed these tests to clarify their rationale and operation: the length-of-marriage test and the age-of-children test. Under these two tests the upper and lower end of the range in each case will be the longer duration produced by either test.

Before we explain the two tests for duration, it is import to remember that the durational limits under the with child support formula include any period of spousal support paid at the interim stage, the same treatment as under the without child support formula.

8.5.2 The length-of-marriage test for duration

The first test for duration is the same as the test for duration under the without child support formula. It will typically be the applicable test for longer marriages, marriage of ten years or more. The upper end is one year of support for each year of marriage, subject to the provisions under the without child support formula for indefinite (duration not specified) support after 20 years of marriage. The lower end is one-half year of support for each year of marriage. If the children are already in school at the time of separation, then the lower end of the range will always be determined by this length-of-marriage test.

Once again, we emphasize that these "softer" time limits are intended to structure the process of review and variation of initial orders that are indefinite in form; they are not intended to give rise to time-limited orders, at least not initially.

We can use Example 8.1 above to explain this test. Ted and Alice cohabited for 11 years during their marriage and are now in their late thirties or early forties, with two children, aged 8 and 10 at separation. The initial support order would be indefinite (duration not specified), but it would be expected that the ultimate, cumulative duration of the award would fall somewhere within the range of 5.5 years (lower end) to 11 years (upper end). The maximum outside time limit would be 11 years. Reviews and variations in the meantime may bring support to an end before 11 years, and certainly the amount may have been reduced significantly during this period. But if support is still in pay after 11 years, there would be an expectation, barring exceptional circumstances, that support would be terminated at that point on an application for review or variation.

In the longer marriage cases under the with child support formula, where the length-of-marriage test defines the durational range, most cases will tend towards the longer end of the durational range and few cases should see support terminate at the lower end, given the strong compensatory claims that are typically present in these cases. The age of the children will be a critical factor in location with the range. Consider Example 8.1 again: if support terminated for Alice at lower end of 5.5 years, the children would be only 13 and 15, an age at which the demands of child care can still have considerable impact upon Alice’s income-earning abilities. By contrast, if Ted and Alice had been married for 14 years, and the children were 10 and 12 at separation, the lower end of the durational range would see support last until the children were 17 and 19. The choice of a particular duration within this range would be affected by these and other factors set out in Chapter 9.

8.5.3 The age-of-children test for duration

The second test for duration under the basic with child support formula is driven by the age of the children of the marriage. It usually operates where the period of time until the last or youngest child finishes high school is greater than the length of the marriage. These are mostly short or short-to-medium marriages, typically (but not always) under 10 years in length. The current case law is inconsistent and erratic on duration for these marriages, ranging from indefinite orders without conditions, to indefinite orders with short review periods and sometimes stringent review conditions, and even occasionally to time limits. Despite the language of indefinite support, the reality in most cases is that support does not continue for long, as re-employment, retraining, remarriage and other changes often intervene to bring spousal support to an end.

We too have struggled with duration for this category of cases. On the one hand, many of these custodial parents face some of the most serious disadvantages of all spouses, especially mothers with little employment history who have very young children in their care, all of which militates in favour of no time limits or very long time limits. On the other hand, many recipient spouses do have good education and employment backgrounds, are younger, and are emerging from shorter marriages and briefer periods out of the paid labour market, all indicators of quicker recovery of earning capacity. Inevitably, as under the current law, this means that reviews are a critical means of sorting out the individual circumstances of the recipient spouses.

The upper end of the range for spousal support under this test is the date when the last or youngest child finishes high school. Relatively few cases will reach this outside time limit and those that do will likely involve reduced amounts of top-up support by that date. Hence, extensions beyond that date would involve cases that fall within any of the exceptions described in Chapter 12, like the exception for the special needs of a child or the exception under s. 15.3 of the Divorce Act.

The lower end of the range under this test is also tied to the age of the youngest child and schooling, once again reflecting the parental partnership model. In shorter marriages, spousal support should continue at least until the date the youngest child starts attending school full-time. The school date will vary from province to province and from school district to school district, based upon the availability of junior kindergarten, the age rules governing school registration and the program the child takes.

Keep in mind that these tests for duration say nothing about the proper amount of spousal support during this period. That will be a function of the recipient’s income-earning ability, her or his ability to undertake part-time or full-time employment. The amount of support may be significantly reduced over the course of any order, or even reduced to zero.

As with longer marriages with dependent children, the initial support order in these shorter marriage cases will still be indefinite (duration not specified), as the determination of self-sufficiency remains an individualized decision. Any time limit will typically only appear after a review or variation hearing, especially in these cases involving young children. This appears to be the pattern in the current Canadian practice, as best as we can discern from the few reported decisions, the feedback we received since the Draft Proposal and the Advisory Working Group.

Take our Example 8.3 where Drew and Kate have only been married four years, with two pre-school children aged 1 and 3 and Kate at home with them. The upper end of the range for duration would be 17 years, while the lower end would be 5 years, the latter assuming that children in their area start full-time school at age 6. In this typical case, any initial order would likely include a review provision, the review to occur at some point before the youngest child starts school.

8.5.4 The use of the two tests for duration: whichever is longer

In most cases, only one of the two tests, either the length-of-marriage test or the age-of-children test, will apply to determine both the upper and lower ends of the range. In general, the length-of-marriage test applies for longer marriages, marriages of ten years or more, while the age-of-children test applies for shorter marriages, those under ten years. But the two tests must be used together, as it is the longer of the two tests that applies for each end of the range. Remember that this is a range for duration, and that the actual outcome in any particular case will be worked out within that range over a series of orders or agreements, by way or review or variation of an initial order or agreement.

Take our Example 8.2 where Bob and Carol have been married for 8 years, with two children aged 4 and 6. The length-of-marriage test suggests a durational range of 4 to 8 years, while the age-of-children test would suggest a range of 2 to 14 years. The result for Bob and Carol would be a durational range where the lower end of the range is 4 years (from the length-of-marriage test) and of the upper end of the range is 14 years (from the age-of-children test). As can be seen, much turns upon the interaction of the length of the marriage and the age of the children.

8.5.5 The problem of short marriages with young children

Applying the two tests for duration under the with child support formula, the range for duration will be determined by whichever test produces the longer duration at both the lower and upper ends of the range. Where those bounds are determined by the length-of-marriage test, there seems to be little difficulty. The range is the same as that under the without child support formula. A durational range of half the length of the marriage to the length of the marriage is intuitively understandable.

The age-of-children test is not as simple. It is tied to the presence of children in the marriage, and the economic disadvantages that come with the obligation to care for children. Length of marriage alone no longer provides a measure of the duration of the spousal support obligation, as the case law increasingly demonstrates, even if some spouses think it should. The age-of-children test will usually apply in shorter marriages. For shorter marriages with young children, this test will generate a long potential duration at the upper end of the range, one that can run as long as the date that the last or youngest child finishes high school, an outcome that raised some concerns during the feedback process. For very short marriages with very young children, the lower end of the range under the age-of-children test, added in the revision process, has also raised some concerns.

Critical to understanding these durational issues is the compensatory rationale for spousal support in these shorter marriage cases. Most of the economic disadvantage in these cases is not in the past, but in the future; it is the continuing disadvantage that flows from the obligations of child care and their impact upon the ability of the recipient parent to obtain and maintain employment. Hence the importance of the age of the children in fashioning durational limits. Our understanding of the current law, based both upon reported cases and discussions with lawyers and judges in our cross-country consultations, is that the law applicable to these cases is in flux, showing increasing recognition over time of the on-going economic disadvantage flowing from post-separation child-care responsibilities.

The upper end of the range for duration under the age-of-children test — up until the last or youngest child finishes high school — may appear long in a shorter marriage case. Consider Bob and Carol again in Example 8.2, where spousal support could potentially last as long as 14 years after an 8-year marriage, if the children are 4 and 6 in Carol’s primary care at the date of separation. If duration were tied to the length of the marriage alone, spousal support would otherwise terminate when the children were 12 and 14 years old. But at this point, Carol’s employment position may still reflect continuing economic disadvantage and limitations placed on her ability to achieve full-self-sufficiency by her post-separation custodial responsibilities. It may only be as the children reach their teenage years that she can focus more on improving her employment position. Termination at this point might also fail, depending on the facts, to recognize Carol’s continuing child care obligations. A good way to test this outside durational limit is to think about the labour market position of the primary parent if one of those children had special needs or developed problems in their teenage years.

Slightly different problems are raised by the lower end of the durational range under the age-of-children test — until the youngest child starts attending school full-time. In the majority of cases, as our consultations revealed, this lower end of the durational range will not be contentious. In marriages of even four or five years, the age of children test will begin to yield results similar to the lower end of the durational range under the length-of-marriage test. Indeed, the major concern raised by the introduction of the lower end of the durational range in cases of shorter marriages with children, whether defined by length of marriage or age of youngest child starting full-time school, has been that it will create a "ceiling" and stunt the progressive development of the law in this area.

However, in some cases, of very short marriages, the age-of-children test has raised concerns that it sets the lower end of the durational range too high — i.e., that it establishes a "minimum duration" that is too long because it exceeds the length of the marriage. The kind of case that raises this concern is a fairly extreme set of facts: a marriage as brief as one or two years, with an infant less than a year old. In this hypothetical case, assuming the child would start full-time school at age 6, the lower end of the range for duration under the age-of-children test would be five years, which some would suggest is too long for such a short marriage.

In responding to this concern, we note that there are a number of other important dimensions to spousal support in these cases, in addition to duration, that soften the impact of this lower end of the range for duration. First, the lower end of the range for duration does not guarantee any particular amount of support. The formula range is driven by the number and age of the children, the spousal incomes, the child custody arrangements, child support amounts, section 7 contributions and tax positions. Much will turn upon the employment status of the recipient, and the recipient’s ability to return to the paid labour market. A recipient is always under an obligation to make reasonable efforts towards self-sufficiency, and, on particular facts, those efforts may be subject to scrutiny in a review scheduled well before the youngest child starts full-time school. Second, in some situations, income will have to be imputed to the recipient, either part-time or full-time, on an individualized basis, often through the process of review. Third, entitlement is always an issue, before reaching the questions of amount and duration under the Advisory Guidelines. In some cases of strong facts — i.e. a recipient with a strong connection to the work-force — there may even be a finding of no entitlement so that the lower end of the range for duration is not engaged. The lower end of the durational range does not create a "minimum entitlement." Finally, we have said all along that the durational limits under the with child support formula are "softer", less formulaic, than those under the without child support formula. In Moge, the Supreme Court of Canada emphasized the need for individualized decision-making on self-sufficiency in compensatory support cases and duration under the with child support formula must therefore not be too rigidly applied.

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