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.
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