The same government which brought us the Child Support Guidelines is now considering spousal support guidelines. A 13 member committee of notables has been formed as an Advisory Working Group working under the leadership of professors Carol Rogerson of the Faculty of Law, University of Toronto, and Rollie Thompson of Dalhousie Law School to look into the possibility of developing this idea. The objective is to help bring more consistency and predictability into the current law of spousal support.

Lawyers practicing in this area realize that the current system of judicial discretion leads to widely differing conclusions when cases with similar facts are decided by different judges in different areas. (Sometimes it seems we’ll get different results from the same fact by the same judge on different days.) That’s one of the results of a system based upon judicial discretion, even with an increasing number of decisions trying come to help judges reach a more common approach.

The question, obviously, is whether or not the advantage of a set of guidelines giving clarity and predictability offsets the disadvantage of unfairness in particular cases. In other words, it’s the tension between general justice and particular justice.

You can check out the original background paper Developing Spousal Support Guidelines in Canada: Beginning the Discussion for a detailed and informative review of the situation which began the process. The paper by Professor Rogerson was dated December, 2002, and the project in now into it’s second stage of discussing the matter with family law experts, judges, practitioners, and others. The hope is to have a set of general proposals available for us to look at by around Spring-Summer, 2004. That will be followed by a third stage consisting of general public consultations with the bench and bar across the country.

You can also see Professor Rollie Thompson’s paper: Slow train comin': Are spousal support guidelines around the bend? for lots more info.

It’s fair to say that the initial thoughts are to arrive at some sort of income sharing proposal which isn’t dependant upon budgets. Spousal support guidelines may look something like a formula with a payment equal to a percentage of the difference in incomes of the separating parties in which various factors such as length of marriage, child support obligations, repartnering, second families, duration, etc., will be taken into consideration.

It’s thought that the forth stage, assuming some consensus and a set of workable guidelines has emerged, will be a group of “pilot projects” in a group of municipalities from which experience could be drawn to enable appropriate revisions. All of this is expected to take about 5 – 6 years. One possibility is to set up an arrangement in which members of the bar would be invited to use the guidelines on a voluntary basis – obviously with the consent of their clients – to see if the approach was seen to be more satisfactory to bench, bar, and the separating parties involved.

All of this is far off as yet, but it seems as though this is a concept coming our way. There are many models now available for review throughout the United States so there’s a body of experience to draw upon.

I think all of us recognize the dangers to an inflexible system which throws discretion out the window and which doesn’t allow for individual circumstances. But at the same time most of us have encountered clients who would like to have some clear and predictable outcome available to them at the outset so they can know how to govern their lives after separation. This project is to try to find a reasonable middle ground. There are people who would prefer certainty to individual fairness so long as that can be seen as generally fair and reasonable. That will also enable some to consider separation in the context of knowing what support they’ll have to pay or can expect to receive.

Whatever the complaints about the Child Support Guidelines, and the complaints al seem to be significantly reduced as we become more familiar with them, there’s a pretty wide view that the predictability has been of more help to more families than the previous system. In any programme of guidelines which are near to mandatory there will be a number of specific inequities. The question is, of course, if the new system results in more or fewer such inequities and is the body politic better served or less well served with the new system. Now that we’ve digested the Child Support Guidelines I think there are more people saying they’ve been a benefit to society than there are those saying we should return to the “good old days”. Maybe that’s the same with spousal support guidelines. But I think any move in that direction will require a more flexible system than now exists for child support.

Joel Miller (Jan. 2004)