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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 20:11, 26 June 2019
, 20:11, 26 June 2019→The views of the courts
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==The views of the courts== | ==The views of the courts== | ||
On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the Advisory Guidelines, in the case of ''[http://canlii.ca/t/1l3x1 W. v. W]'', 2005 BCSC 1010. The judge said that the Advisory Guidelines "provide a cross check against the assessment made under existing law" | On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the Advisory Guidelines, in the case of ''[http://canlii.ca/t/1l3x1 W. v. W]'', 2005 BCSC 1010. The judge said that the Advisory Guidelines "provide a cross check against the assessment made under existing law," and that the formulas provided in the Advisory Guidelines are "consistent with the law in British Columbia." She then made an order for spousal support using the Advisory Guidelines as a check, without expressly applying the Advisory Guidelines to determine the issue. The Advisory Guidelines, she held, is not law, and is not intended to become law. | ||
On 19 July 2005, the court released its second judgment on the Advisory Guidelines, ''[http://canlii.ca/t/1l2x7 M.S. v. W.S.]'', 2005 BCSC 939. In this case, the judge held, rather emphatically, that the court is not bound by the Advisory Guidelines in determining spousal support and that "equitable distribution can be achieved in a variety of ways and need not be calculated according to a strict formula." | On 19 July 2005, the court released its second judgment on the Advisory Guidelines, ''[http://canlii.ca/t/1l2x7 M.S. v. W.S.]'', 2005 BCSC 939. In this case, the judge held, rather emphatically, that the court is not bound by the Advisory Guidelines in determining spousal support and that "equitable distribution can be achieved in a variety of ways and need not be calculated according to a strict formula." | ||
This view was softened later in 2005 by the Court of Appeal in the case of ''[http://canlii.ca/t/1lb8m Yemchuk v. Yemchuk]'', 2005 BCCA 406. In this case, the court held that the Advisory Guidelines | This view was softened later in 2005 by the Court of Appeal in the case of ''[http://canlii.ca/t/1lb8m Yemchuk v. Yemchuk]'', 2005 BCCA 406. In this case, the court held that the Advisory Guidelines reflect the general results seen in the case law on spousal support. While the court stopped well short of saying that the Advisory Guidelines must be used to determine spousal support, it did consider the Advisory Guidelines a useful tool and a factor to be considered in making an order for spousal support, and made an order for support that was within a hair's breadth of the numbers the Advisory Guidelines formulas produced. | ||
===The state of the law in British Columbia=== | ===The state of the law in British Columbia=== | ||
As a result of ''Yemchuk'', the law in British Columbia was that the Advisory Guidelines is a factor to be taken into <span class="noglossary">account</span> in fixing the amount and duration of an order for spousal support, but that it is no more than a factor. This changed with ''[http://canlii.ca/t/1nwzz Redpath v. Redpath]'', 2006 BCCA 338, a 2006 decision of the Court of Appeal, in which the court held that it is an appealable error for a judge to fail to consider the results produced by the Advisory Guidelines. This moves things well beyond ''Yemchuk'', as now a trial judge ''must'' consider the Advisory Guidelines formula results in making a decision on spousal support. In 2010 the Court of Appeal went even further in ''[http://canlii.ca/t/2d35m Domirti v. Domirti]'', 2010 BCCA 472, ruling that an award of spousal support that falls substantially outside the Advisory Guidelines ranges may be an appealable error. | As a result of ''Yemchuk'', the law in British Columbia was that the Advisory Guidelines is a factor to be taken into <span class="noglossary">account</span> in fixing the amount and duration of an order for spousal support, but that it is no more than a factor. This changed with ''[http://canlii.ca/t/1nwzz Redpath v. Redpath]'', 2006 BCCA 338, a 2006 decision of the Court of Appeal, in which the court held that it is an appealable error for a judge to fail to consider the results produced by the Advisory Guidelines. This moves things well beyond ''Yemchuk'', as now a trial judge ''must'' consider the Advisory Guidelines formula results in making a decision on spousal support. In 2010, the Court of Appeal went even further in ''[http://canlii.ca/t/2d35m Domirti v. Domirti]'', 2010 BCCA 472, ruling that an award of spousal support that falls substantially outside the Advisory Guidelines, ranges may be an appealable error. | ||
The law in British Columbia, then, is that the results of the Advisory Guidelines calculations must be considered when making a decision on spousal support. The Advisory Guidelines is, in other words, all but mandatory in this province. | The law in British Columbia, then, is that the results of the Advisory Guidelines calculations must be considered when making a decision on spousal support. The Advisory Guidelines is, in other words, all but mandatory in this province. | ||