Karen Kear-Jodoin has a standard blurb she tells divorce clients about their prospects for getting spousal support from the court. “On a good day, you may receive 40 per cent [of gross income] and on a bad day you may receive 15 per cent,” says the Montreal family lawyer. “It depends on the judge. There has to be a better way.”

For some lawyers and judges, that better way is the Spousal Support Advisory Guidelines, which this summer authors Carol Rogerson and Rollie Thompson finalized following the release of a draft report in 2005. In essence, the guidelines boil down spousal support decisions in typical cases to one of two formulas — one for couples with children and another for couples without kids — in order to determine a range for both amount and duration of an award. But while courts in New Brunswick, Ontario, and British Columbia have endorsed their use, in Quebec, the Court of Appeal has criticized them.

As a result, the guidelines rarely come up in court there, with many lawyers using them “en cachette,” or behind closed doors, says Kear-Jodoin. “I don’t hear about them in the courts,” says Kear-Jodoin, noting the July 2006 Quebec Court of Appeal ruling that reduced a spousal support award determined by the advisory guidelines has left lawyers afraid to raise them in front of judges.

Elsewhere, however, lawyers and judges are making regular use of the guidelines. In British Columbia, for example, family lawyer Kathleen Walker finds that while the courts have been applying them frequently since a 2005 appeal ruling in Yemchuk v. Yemchuk, the trend has increased even more since Rogerson and Thompson released their final version. “What I’m finding is that [judges] will not do anything but what’s set out in the spousal support guidelines,” says Walker. “They’re applying them much more rigorously than they were even six months ago.”

It’s not only in Quebec that the guidelines come under criticism, however. Walker, for example, says although she always carries a printout of the guidelines to court, she finds the awards under them are more generous than what she used to see. “I think they’re too high. I think if I had to come up with that kind of money every month, I don’t know how I would do it.”

Thompson, though, says although regional variations in spousal support awards mean some people will find the guideline results too high or too low, the benefit comes from less arguing in court since, in theory, they will make it easier for divorcing couples to settle and allow judges to render decisions faster.

“I think that you do hear from some people that they feel in some cases you could get a little bit more [support],” says the Dalhousie University law professor. “But you know what my answer to that is? In order to get to that little bit more, without guidelines it costs you a lot more money [to litigate]. You’re trading off legal fees against outcomes here.”

The guidelines project, which began as an initiative of the federal Department of Justice in 2001, aimed to bring consistency to an area of law that had become increasingly subject to judicial discretion following two landmark Supreme Court of Canada cases on spousal support.

“The leading decisions on spousal support law, which would be particularly Moge and Bracklow, were cases about entitlement and they painted very broad strokes,” says Thompson. “Bracklow, in particular, recognized a fairly broad basis for entitlement on a non-compensatory basis, as in not compensation for economic disadvantage but really need. As a result of that, a lot of issues got pushed from entitlement to quantum and duration, and people were having immense difficulty finding predictability and consistency. I think those difficulties between 1999 and 2000 [or so] were what fed an interest in advisory guidelines.”

Getting to a final version wasn’t always easy, however. For Thompson, the most straightforward area was developing a formula for couples with dependent children since the issues are fairly standard. “There’s a lot of homogeneity in cases with kids because kids demand care,” says Thompson. “That formula works quite well for a wide range of cases.”

In the end, the authors settled on a formula that awards the custodial parent between 40 and 46 per cent of the couple’s combined disposable income. But the question of how long that support should last was tricky. In marriages that were neither long or short, for example, questions of duration can be complicated by the fact that the children may be soon about to leave the home as they reach age 18.

As a result, the issue becomes how long the recipient should continue to receive support at that point since the courts must also consider when a spouse can be reasonably expected to be self-sufficient. In one part of the country, Thompson notes, a tendency for couples to marry early added to the challenge since recipients would often be in their late 30s or early 40s when their kids left the home. That meant they still had time left to start or build a career.