The final result was what the guidelines authors call a “soft” approach to duration for couples with dependent children. The guidelines do set potential time limits based on either the length of the marriage or the age of the children but, the authors emphasize, that range is meant to be a guideline for a review or a variation of a support order rather than a potential hard cap on payments.

When a judge ultimately rules that support should end depends on the particular characteristics of the marriage, such as the degree to which the recipient spouse has experienced an economic disadvantage due to the focus on raising the children.

Nevertheless, Toronto family lawyer Llana Nakonechny worries the use of a formula is still a barrier to acknowledging the particular sacrifices that one partner — usually the woman — often makes during a marriage. “I think this is always the problem with a formula . . . it can’t take into account some of the particular roles played during the marriage, the reason for somebody’s inability to get back into the workforce or choices that may have been made by the parties,” says Nakonechny, who sits on the legal committee for the Women’s Legal Education and Action Fund. “We know that women’s after-tax financial circumstances after marriage are so much less than men’s, and they always have been.”

For Nakonechny, the issue of guidelines is a catch-22. On the one hand, judges need discretion, but on the other, she says the guidelines have reduced the uncertainty that characterized spousal support rulings in Canada. “That’s what led to the want for the guidelines because people said, ‘This is all over the map. . . . We can’t advise our clients, we don’t know what to expect, we don’t know what the judge is going to do. So, could we just have something that would help to avoid this lengthy fighting and litigation about numbers?’”

Thompson, however, has a response to the concerns of people like Nakonechny. The guidelines, he notes, have a number of exceptions where the formulas don’t apply. A spouse who gives up a career in order to move elsewhere with a partner who has transferred jobs, for example, is one situation where a short time limit on support due to a relatively short marriage would make the formulas impractical. Another exception, meanwhile, recognizes the need for higher or longer payments to a spouse who has a disability. “There has been to a surprising degree a tendency not to look at the list of exceptions, so that what happens is people have focused on the formulas as being the guidelines. The result is they’ll use the formulas in a disability case, and they’ll [say], ‘Those numbers don’t make any sense. I’m not using those numbers.’ Well, there’s this big thing that says ‘exception — illness and disability,’” says Thompson.

Nevertheless, while observers like Nakonechny worry about what the guidelines mean for the status of women, people like Danny Guspie argue they have entrenched a bias in the courts against men. “I think for a man it means certain ruin,” says Guspie, a divorce-management consultant and executive director of Toronto-based Fathers’ Resources International.

Besides his concerns over the amount and duration of payments mostly men have to make, Guspie accuses Parliament of having shirked its responsibility by turning to outside experts to create the advisory guidelines in the first place. “It’s what a bunch of professors have said is now the law,” he says, calling the whole project “politics at its worst.”

Thompson, though, emphasizes the guidelines are merely an advisory tool that reflect the current jurisprudence on spousal support. He adds that if Parliament wants more stringent or specific rules, the government is free to change the Divorce Act. But for now, he says, the guidelines are useful. “To some extent, I think the success of the guidelines reflects their advisory nature, which is that people don’t feel hemmed in and bound by them. They use them most of the time because they work most of the time. When they don’t work, they’re not stuck with them.”

In the meantime, he expects they will evolve as judges and lawyers experiment with them. “What the advisory guidelines do is they take a whole range of typical cases and make them easier to resolve in a reasonable way. That’s what I think we’ve seen three years later, and now we have to move onto the next stage and say what do we do with some of those areas of the law that aren’t so clear.”

For her part, Edmonton family lawyer Marie Gordon says she’s just grateful the guidelines have reduced what she calls the “chaos” that used to characterize spousal support rulings. “Pre-guideline jurisprudence was no picnic,” she says. “It really was very discretionary [and] very judge-driven. So, on similar sets of facts, you might get very different outcomes.”

The Spousal Support Advisory Guidelines are available on Justice Canada’s web site at http://www.justice.gc.ca/eng/pi/pad-rpad/res/spag/toc-tdm.html