Spousal Support Advisory Guidelines: A Draft

The Canadian Law of Spousal
Support: The Guidelines
(full version)
Law Commission Supplementary Consultation
on Post-Divorce Financial Arrangements
Inner Temple, London, Dec. 3, 2012
Professor Carol Rogerson
Faculty of Law, University of Toronto
Purpose: share with you experiences in Canada re one
aspect of financial relief: law of spousal support
Some discussion about substance of our law; grappling
with basic principles like Law Commission
More on method: advisory guidelines using “income
sharing” formulas, SSAG
Not suggesting that Canadian solutions appropriate for
specific content of our guidelines responsive to Canadian legal
but perhaps some general lessons re possibility of guidelines
despite complex, challenging nature of this area of law
emphasis: flexibility, practicality
Theme: Rules vs. Discretion
Average Justice vs. Individualized Justice
In many family law systems (eg. Canada) see move
towards more rule-based laws (Dewar)
ensure fair results (consistency)
efficient dispute resolution: certainty and predictability promote
settlement, reduce costs and conflict
Concern: rules can be too rigid; arbitrary and unfair
(“cookie cutter justice”)
but many different points on spectrum from discretion to rules
balancing advantages and disadvantages of rules
many ways of retaining scope for flexibility and discretion while
providing structure and guidance
Financial Relief: 3 Distinct Remedies
1. Matrimonial property division
 under provincial law; 10 different schemes
 all based on concept of marriage as a “partnership"
 presumptive equal division of a pool of marital assets; some
discretion to depart (fairly “rule-based”)
 ability to defer sale of home; occupancy orders post-divorce
2. Child support
 divorcing couples under federal divorce law; others under
prov. law (but laws the same)
 since 1997, legislated child support guidelines (fairly “rulebased”); court-based not agency based
 formulaic, percentage of payor income guidelines to
determine basic amount of child support; then additional
discretionary factors
 successful, wide support among lawyers, judges, public
 child support has priority over spousal support
3. Spousal Support
 legislation highly discretionary but now advisory guidelines
(SSAG) to guide application
Challenging and controversial
Law complex, often uncertain
Starting point of law reform in Canada (1980s)
reject “pension for life”
entitlement not based on mere status of marriage alone
but what replaces traditional model?
Statutory remedy, but little guidance; checklists of factors
and objectives: eg. Divorce Act, 1985
recognize economic advantages/disadvantages
apportion on-going costs of child care
relieve economic hardship
promote self-sufficiency
Broad discretion to trial judges
Leading SCC Cases
Expanding basis for entitlement but increasing uncertainty:
Pelech (1987) “clean break”
emphasized promoting spousal independence
short term transitional awards
but found to be too harsh; inconsistent with statute
Moge (1992) “compensatory” support
focus on economic impact of marriage: economic advantages/
disadvantages; esp. women’s sacrifice of earning capacity because
of child-rearing responsibilities
how to implement? still too narrow?
Bracklow (1999) “need” (“non-compensatory” support)
support can also be based on “need” and interdependency
basic needs? loss of marital standard of living? transitional or
permanent? no clear answers
no single model or theory/large role for discretion of trial judge
Result: Spousal Support Law
Too Uncertain and Unpredictable
Potentially expansive basis for entitlement to spousal
support but much uncertainty in application
Different outcomes on similar facts depending on region
and judge
Some awards too low (underestimating economic impact
of marriage and children), some too high (returning to
pension for life)
For lawyers: hard to advise clients and settle cases
Many women not claiming spousal support even though
Growing dissatisfaction with current state of law
Project starts in 2001
Justice Canada, Profs Rogerson and Thompson, Family
Law Advisory Group
Explore possibility of developing advisory guidelines for
spousal support based on income-sharing:
not legislated; true “guidelines”
practical tool
dissatisfaction with current state of law
but also sense of dominant patterns emerging in typical cases
positive experience with income-sharing guidelines for child
support; computer soft-ware generating household net income
some lawyers and judges creating own informal formulas
American Law Institute (ALI): sophisticated model
Work with advisory group:
identify outcomes, dominant patterns in typical cases
develop income sharing formulas to capture those results
reflecting current law: guidelines built “from the ground up”
“Draft Proposal” January 2005
Wide consultation and feedback, judges and lawyers
Final Version, July 2008
SSAG web site at University of Toronto:
Rogerson & Thompson, “The Canadian Experiment with
Spousal Support Guidelines” (2011) 45 Family Law
Quarterly 241 (also on SSAG web site)
Not legislated; informal and advisory (a practical “tool”)
Intended to reflect current law not change it
use not mandatory; true “guidelines”
focus on dominant patterns not outliers
pragmatic rather than theoretical
Formulas to assist in determining amount and duration of
support after entitlement is established under statute
Flexible scheme; not “rigid” (but also complex)
not a single formula: two basic formulas and several other
formulas generate ranges rather than precise amounts and
durations; scope to respond to facts of individual cases
starting point in typical cases: then address exceptions
initial determinations under SSAG will often require on-going
variation in response to changing incomes, repartnering, second
families, etc.
Initial reactions mixed:
concerns with illegitimacy and “cookie cutter justice” to complex,
fact-specific issues
initial reactions often based on assumptions not actual nature of
scheme (assume more “rigid” scheme)
Over time have become widely accepted and used by
lawyers and judges across country
Use facilitated by development of computer software
Lawyers: very useful in shaping client expectations and
providing structure for negotiations
Strong appellate court endorsement in three provinces
(B.C., N.B., Ont.):
useful tool
legal status analogous to compilation of precedent
don’t eliminate need for an individualized analysis; “starting
point” or “litmus test”
Formulas work off income disparity between parties; are
based on income-sharing
But also incorporate other factors:
length of marriage
presence of minor children
age of parties
Two basic formulas
 the without child support formula (“merger over time”)
 the with child support formula (“parental partnership”)
The Without Child Support Formula
“Merger over Time”: amount and duration both
increase with length of marriage
Amount: Range
 1.5 to 2 % of the difference between the spouses’ gross
incomes (the gross income difference) for each year of
marriage up to a maximum of range of 37.5 to 50% at 25
years plus.
Duration: Range
 ½ to 1 year for each year of marriage.
 Indefinite (no fixed time limit) if the marriage is 20
years or longer
Without Child Support Examples
John earns $70,000 (£44,000); Mary $30,000 (£19,000)
Gross income difference = $40,000 (£25,000)
If marriage 20 years:
Applicable percentage: (1.5 to 2% for each year) =30 to 40%
Amount of ss: $12,000 to $16,000 annually (£7,500 to £10,000) or
$1000 to $1333 monthly (£625 - £833)
Duration: indefinite because marriage 20 yrs (subject to
subsequent review and variation)
If marriage 10 years:
Applicable percentage: 15 to 20%
Amount of ss: $6,000 to $8,000 annually (£3,750 to £5,000) or
$500 to $666 monthly (£312 to £416)
Duration: (1/2 to 1 yr for each yr of marrriage) = 5 to 10 years
Can use formula outcomes to “front-end load” or create lump sums
The With Child Support Formula
“Parental Partnership”: focus on past and on-going
 Recognizes priority to child support
 Does not vary with length of marriage
 Divides pool of net income after parties have met their child support
obligations and paid taxes so that after payment of spousal support
recipient is left with 40 to 46% of that pool
 Requires computer software for calculations
 Orders usually indefinite; duration worked out through review and
 Durational limits to be implemented on variation and review
 Combination of length of marriage and ages of children (shorter
With Child Support Example 1
Bob earns $70,000 (£44,000)
Alice earns zero
11 yr marriage
2 children aged 8 and 10 with Alice
Child support: table for 2 children $1037 (£652) per month
Spousal support range: $879 to $1,192 (£552 to £750)
per month;
Will leave Alice with between 51 to 56% of net household
income (including child support)
Duration: indefinite; expected duration between 5.5 to 11
years to be determined on variation/review;
Alice will be expected to train and find employment in this
With Child Support Example 2
If Alice finds employment and now earns $30,000
(£19,000) how will the spousal support change?
Spousal support range: zero to $199 (£125) per month;
Will leave Alice with between 55 to 57% of net household
income (including child support)
Compelling financial circumstances in interim
Debt payment
Prior support obligations: support for prior child or
prior spouse
Illness and disability
Compensatory exception in shorter marriages:
disproportionate loss/advantage
Payor incomes over $350,000 and under
Post-separation income increases
Remarriage, repartnering and second families
Assessment of the SSAG
Formal evaluation (2012) plus evidence from
consultations and case law: largely positive
Widely used; provide clearer starting points and more
structure; greater predictability and certainty; less conflict
Duration more difficult than amount
New focus on income as a major issue (actual, imputed)
But complex: long document; need software; formulas
not rigid and don’t provide clear answers (advantage and
Main problem: unsophisticated use; tendency to turn
SSAG into default rules; ignore the exceptions; choose
midpoint of range by default; but easing over time with
use and education
Also unclear status: advisory
Lessons to be drawn from Canadian experience with
 Spousal support amenable to guidelines regime provided
guidelines sufficiently flexible and sophisticated
 Advisory guidelines can accommodate multiple
objectives in a practical way
 Advisory guidelines can resolve large numbers of typical
cases and offer structure that informs resolution of more
difficult cases
 Greater consistency and predictability of outcomes leads
to greater fairness and legitimacy for the substantive