Improving the Law of Spousal Support: The Spousal Support Advisory Guidelines Project
Prof. Carol Rogerson
From the Spring/Summer 2006 issue of Nexus.
Over the course of the past several years I have been working, together with Professor Rollie Thompson from Dalhousie Law School, on an innovative project that has the potential to significantly improve the way in which the Canadian legal system deals with spousal support in divorce cases. The project, funded by Justice Canada, involves the development of informal, advisory guidelines intended to bring more predictability and consistency to this controversial area of law which has come to be characterized by highly discretionary and subjective decision-making. Our Draft Proposal for Spousal Support Advisory Guidelines (the "Draft Proposal") was released by the Department of Justice in January of 2005 and is available online at www.justice.gc.ca/en/dept/pub/spousal/project/toc.html. We are now in the process of gathering feedback on the proposal, with a view to issuing a revised proposal in September of 2007.
When people, other than family lawyers, learn that I am working on the law of spousal support, the typical response is one of puzzlement. While most people are familiar with the child support obligation and intuitively accept its fairness, many do not even know what spousal support is until I refer to its earlier legal incarnation-alimony. And knowing that, they wonder why I would spend my time working on an issue that has obviously become obsolete in an era of no-fault divorce, new norms of gender equality accompanied by high rates of female labour force participation, and laws requiring the equal sharing of matrimonial property upon divorce.
But spousal support is not a legal or social anachronism; it is a significant legal obligation and an area of law that remains of crucial significance to many women going through the process of divorce. The Canadian law of spousal support has undergone a dramatic evolution over the course of the past twenty years. Starting from a point in the 1980s where the "clean break" model of spousal support dominated, our law has come to recognize, through a series of important Supreme Court of Canada decisions interpreting the spousal support provisions of the 1985 Divorce Act, an expansive basis for spousal support that may surprise many readers.
In its ground-breaking Moge decision in 1992, the Supreme Court of Canada articulated a generous compensatory basis for spousal support, recognizing the important role of spousal support in fairly compensating spouses for the economic impact of the marriage and marital roles, most typically the sacrifice of labour force participation to care for children, both during the marriage and after marriage breakdown. Then in its 1999 decision in Bracklow, the Supreme Court of Canada further expanded the basis for spousal support by recognizing a significant non-compensatory role for spousal support based on need alone - need unconnected to marital roles. Bracklow thus endorsed a broader role for spousal support beyond compensation for the economic gains and losses arising from the marriage, to one that entails responding to the economic dislocation and hardship that results when relationships of economic dependency involving closely intertwined lives break down.
Despite the gender neutral language of the spousal support provisions of the Divorce Act and the fact that spousal support can be claimed by men left in economic need at the end of a marriage as well as women, women remain the primary recipients of spousal support. This is no surprise. While progress has been made, gender equality in the family and the workplace remains an elusive goal for many women. Under current structures of family and work, significant numbers of women in opposite-sex relationships still tend to assume a disproportionate share of responsibility for child-rearing, to the detriment of their labour force participation and incomeearning capacity. They are thus left in a weaker economic position at the point of marriage breakdown than their husbands. Spousal support is the legal remedy that is available to remedy this economic vulnerability.
But all is not well in the law of spousal support. The guiding principles of "compensation" and "need" endorsed by the Supreme Court of Canada are vague and abstract and open to widely differing interpretations by judges and lawyers. This is a problem reinforced by the Supreme Court of Canada's insistence that spousal support decisions are inherently factual and discretionary, not based on any overarching rules or principles. Lawyers and judges have expressed growing concerns that the highly discretionary nature of the current law of spousal support has created an unacceptable degree of uncertainty and unpredictability.
Similar fact situations can generate a wide variation in results. Individual judges are provided with little concrete guidance in determining spousal support outcomes, and their subjective perceptions of fair outcomes often play a large role in determining the spousal support ultimately ordered. Lawyers in turn have difficulty predicting outcomes, thus impeding their ability to advise clients and engage in cost-effective settlement negotiations. And for those without legal representation or in weak bargaining positions- a not uncommon situation for many divorcing women-support claims are often simply not pursued. Despite a very broad basis for entitlement under the current law, many women do not claim spousal support, being unwilling to engage in the difficult and costly process required.
The spousal support advisory guidelines project is a response to these concerns. At the heart of the Draft Proposal are two formulas intended to provide a more consistent and predictable basis for determining the amount and duration of spousal support. Under these formulas, which are based on the concept of "income-sharing", spousal support is calculated as a specified percentage of spousal incomes, with the applicable percentages varying according to a number of factors including the length of the marriage and the presence or absence of dependent children. The formulas also provide guidelines for the length of time spousal support is to be paid, based upon the length of the marriage and the ages of both the spouses and the children.
Unlike the federal Child Support Guidelines introduced in 1997, these guidelines are not an exercise in formal law reform. They are, instead, informal, advisory guidelines intended to operate within the current legislation and to generate results in broad conformity with dominant outcomes and emerging trends in current practice. While current practice certainly does not yield uniform results across the country, patterns can be found in a range of typical fact situations and it is these patterns which have been incorporated into the advisory guidelines. We have called the process by which these guidelines were developed one of working "from the ground up"-working from current practice and drawing on the knowledge of those who work in this area on a daily basis. In order to assist us in developing the advisory guidelines, the federal Department of Justice created a thirteen person Advisory Working Group on Family Law composed of lawyers, judges, and mediators from across the country.
How have lawyers and judges responded to the draft spousal support advisory guidelines which are, admittedly, novel in form being both advisory and not legally binding? Since the release of the Draft Proposal, Professor Thompson and I have been traveling across the country speaking to groups of lawyers and judges, and the response has generally been very positive. Awareness of the advisory guidelines is increasing 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 have been downloaded from the Justice web site since its release. There are now over 130 judicial decisions from across the country in which the advisory guidelines have been considered, including strong endorsements from appellate courts in British Columbia and New Brunswick. Even more significantly, the advisory guidelines are being widely used by lawyers in spousal support negotiations with other lawyers and in settlement conferences before judges.
There have certainly been criticisms of the guidelines - some based on fundamental opposition to the concept of spousal support guidelines or to the concept of informal, non-legislated guidelines; some based on misunderstandings of the proposed scheme; and some supportive of the concept of advisory guidelines but pointing to aspects of the scheme that still require revision and fine-tuning. However, the Draft Proposal has already achieved one of its goals, which is the rekindling of a serious debate about the law of spousal support.
With growing awareness of the advisory guidelines we are now well-positioned to move into the next phase of the project, one of more structured feedback based on an "Issues Paper" which we are in the process of preparing, with a review to producing a revised set of advisory guidelines in the early fall of 2007.
Returning to the theme of this issue of Nexus, the question arises of what impact this somewhat novel scheme of advisory spousal support guidelines will have on women. Clearly not every woman claiming spousal support will be better off under the advisory guidelines than under the current highly discretionary system for determining spousal support. Based as they are on dominant outcomes and emerging patterns in current practice, the advisory guidelines are not intended to increase levels of spousal support across the broad run of cases. Rather, they are intended to provide greater consistency - which will inevitably mean that some spouses will see higher support awards and others will see lower awards.
Rather than a dramatic increase in spousal support awards, the main impact of the advisory guidelines, should they become widely adopted and applied, will likely be more frequent spousal support awards, as they offer default ranges and reduce the cost of ascertaining support amounts. Many women who now abandon legitimate spousal support claims under the current costly and unpredictable discretionary regime will obtain the support to which they are entitled. The advisory guidelines offer, to my mind, the possibility of actually implementing the generous principles of spousal support endorsed by the Supreme Court of Canada in Moge and Bracklow and, given that this is a project that is national in scope, in a way which will accrue to the benefit of women across the country.
