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Difference between revisions of "The Spousal Support Advisory Guidelines"
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The Spousal Support Advisory Guidelines (view source)
Revision as of 01:08, 2 May 2013
, 01:08, 2 May 2013→The law in other provinces
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<blockquote>"The provisions of the ''Divorce Act'' as interpreted by the Supreme Court of Canada are the law in this country with respect to spousal support. The Spousal Support Advisory Guidelines are the work of two university professors, Carol Rogerson and Rollie Thompson, assisted by a small committee. Those with strong views to the contrary were not involved, nor was there widespread discussion of the guidelines prior to their publication. They have not been enacted by the Parliament of Canada or any Provincial Legislature nor are they the subject of any governmental regulation.</blockquote> | <blockquote>"The provisions of the ''Divorce Act'' as interpreted by the Supreme Court of Canada are the law in this country with respect to spousal support. The Spousal Support Advisory Guidelines are the work of two university professors, Carol Rogerson and Rollie Thompson, assisted by a small committee. Those with strong views to the contrary were not involved, nor was there widespread discussion of the guidelines prior to their publication. They have not been enacted by the Parliament of Canada or any Provincial Legislature nor are they the subject of any governmental regulation.</blockquote> | ||
<blockquote>"The Guidelines are a cause for concern. There is no doubt that they are useful for a judge who does not wish to make a thorough and careful analysis of each case and wants a quick <span class="noglossary">answer</span>. However, it is not the role of judges to opt out for an easy answer. Rather judges are bound by the ''Divorce Act'' and the case law which require judges to do individual justice in each case and not look for a 'cookie cutter' answer.</blockquote> | <blockquote>"The <span class="noglossary">Guidelines</span> are a cause for concern. There is no doubt that they are useful for a judge who does not wish to make a thorough and careful analysis of each case and wants a quick <span class="noglossary">answer</span>. However, it is not the role of judges to opt out for an easy <span class="noglossary">answer</span>. Rather judges are bound by the ''Divorce Act'' and the case law which require judges to do individual justice in each case and not look for a 'cookie cutter' answer.</blockquote> | ||
<blockquote>"As well, the Guidelines are stated to be experimental. It is not the function of courts to experiment on the citizens of this country.</blockquote> | <blockquote>"As well, the <span class="noglossary">Guidelines</span> are stated to be experimental. It is not the function of courts to experiment on the citizens of this country.</blockquote> | ||
<blockquote>"The authors of the Guidelines state that the Guidelines do not change the law. However, in my view, they attempt to do so. For example, they <span class="noglossary">advocate</span> income sharing which has rarely been accepted in this country except for exceptionally long term marriages. It will not be long before someone will argue that disparity in income equals entitlement. As indicated by Chouinard, J. in ''Messier v. Delage'', a person does not acquire a lifetime pension as a result of marriage. Likewise, marriage is not an insurance policy. | <blockquote>"The authors of the Guidelines state that the Guidelines do not change the law. However, in my view, they attempt to do so. For example, they <span class="noglossary">advocate</span> income sharing which has rarely been accepted in this country except for exceptionally long term marriages. It will not be long before someone will argue that disparity in income equals entitlement. As indicated by Chouinard, J. in ''Messier v. Delage'', a person does not acquire a lifetime pension as a result of marriage. Likewise, marriage is not an insurance policy. | ||
The Guidelines also ignore the distribution of matrimonial property which the Supreme Court of Canada in ''Boston v. Boston'', said was relevant. They ignore the goal of self-sufficiency as set out in the ''Divorce Act''. Also they fail to take into account the growing trend, at least in Alberta, towards shared parenting.</blockquote> | The <span class="noglossary">Guidelines</span> also ignore the distribution of matrimonial property which the Supreme Court of Canada in ''Boston v. Boston'', said was relevant. They ignore the goal of self-sufficiency as set out in the ''Divorce Act''. Also they fail to take into account the growing trend, at least in Alberta, towards shared parenting.</blockquote> | ||
<blockquote>"The Guidelines purport not to deal with entitlement. Under the ''Divorce Act'' there are degrees of entitlement based on a multitude of factors. However, the ranges set out in the Guidelines are not sufficient to cover the many possible degrees of entitlement.</blockquote> | <blockquote>"The Guidelines purport not to deal with entitlement. Under the ''Divorce Act'' there are degrees of entitlement based on a multitude of factors. However, the ranges set out in the Guidelines are not sufficient to cover the many possible degrees of entitlement.</blockquote> | ||
<blockquote>"The Guidelines set an arbitrary and presumptive range for both amount and duration. The onus is reversed requiring the payor to justify an exception to the Guidelines. The presumptive nature of the Guidelines does away with a claim based on evidence.</blockquote> | <blockquote>"The Guidelines set an arbitrary and presumptive range for both amount and duration. The onus is reversed requiring the payor to justify an exception to the Guidelines. The presumptive nature of the Guidelines does away with a claim based on evidence.</blockquote> | ||