Difference between revisions of "The Spousal Support Advisory Guidelines"

This section provides an introduction to the Spousal Support Advisory Guidelines. It discusses what the courts have had to say about the Advisory Guidelines and describes how its formulas work, and

In 2001, the federal Department of Justice struck an advisory working group to look into the feasibility of uniform guidelines for the calculation of spousal support. The group was composed of judges, family law lawyers, law school faculty members and social workers, and was led by Professors Carol Rogerson and Rollie Thompson, both gifted and highly qualified academics with strong backgrounds in family law.

In January 2005, Professors Rogerson and Thompson released their first paper, ''Spousal Support Advisory Guidelines: A Draft Proposal'', for public comment and feedback. After touring the country speaking to judges, lawyers and academics, and monitoring the case law on the draft Advisory Guidelines develop for several years, Rogerson and Thompson released their final paper, ''Spousal Support Advisory Guidelines'', in July 2008.

The Advisory Guidelines attempts to reflect current practice under the existing law. The Advisory Guidelines is not based on any particular theory of spousal support; it is an independent attempt to reflect the results presently found in the case law on the subject.

Income sharing does not mean an equal division of income, however, and the ranges the Advisory Guidelines proposes when child support is paid is between 40% and 46% of the total disposable income available to both parties. When no child support is paid, the Advisory Guidelines gives the recipient a share of the difference between the recipient's income and the payor's income which increases with the length of the relationship.

In many cases, the Advisory Guidelines sets out a range of years that support will be paid for; in certain cases, such as long marriages, where the dependent spouse is older or when child support is paid, support will be paid for an indefinite period of time.

To every rule there is an exception, and the Advisory Guidelines is no different. The ranges the Advisory Guidelines formulas produce aren't carved in stone. Factors such as advanced age, illness, debt load and so forth may suggest that the results for amount, duration or both should be ignored.

That said, the Advisory Guidelines works just as well to decide spousal support for married spouses and unmarried spouses since the laws that apply to determine spousal support for unmarried spouses in British Columbia, the ''[[Family Law Act]]'', works in exactly the same way as the ''Divorce Act''.

The Advisory Guidelines has melded seamlessly into family law practice in this province and is routinely used to determine spousal support, whether in the course of litigation, arbitration, mediation or negotiation. Professor Thompson was exactly correct when he predicted that lawyers and the courts would come to rely on the Advisory Guidelines by custom. Frankly, the Advisory Guidelines offers a seductively easy solution to a difficult problem.

Until fairly recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the absence of public, free spousal support calculators. This seemed to me to be an appropriate function of government, particularly as it was government which funded the Advisory Guidelines project, however the Department of Justice had no enthusiasm for the project. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, would not sell their product to people weren't employed in the justice system in some capacity.

This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, [www.mysupportcalculator.ca mysupportcalculator.ca]. The website performs child support calculations under the Child Support Guidelines and spousal support calculations under the Advisory Guidelines. The results of the spousal support calculations do not precisely match the results produced by their bells-and-whistles product for professionals and do not account for all of the factors which can impact on the results (such as source of income, tax benefits, deductions and credits, payments to special expenses, and so forth), however the results will be fine for most people most of the time. DivorceMate deserves much credit for making this resource available, and I thank them for it, whether the resource is a revenue-generating advertising platform or not.

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".

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 reflects 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 hairsbreadth of the numbers the Advisory Guidelines formulas produced.

(Of course, this also means that lawyers must become proficient in using the Advisory Guidelines formulas or they risk giving their clients and the courts incorrect information. The Without Child Support calculations, discussed later, are not terribly complex, but the With Child Support calculations demand a basic knowledge of the federal and provincial benefits and credits relating to children, the different deductions which apply to employment and self-employment income, received versus taxable dividends, and a few other wrinkles relating to the calculation of after-tax income. Owning the software required to do the Advisory Guidelines calculations isn't enough. Lawyers need to know how to expertly use that software, with tax and income issues in mind, and the software has to do the math and actually perform those calculations correctly. See my paper on the subject, posted on the Department of Justice's website.)