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SPOUSAL SUPPORT GUIDELINES - REAL OR ILLUSORY?

You have no doubt read in this article previously that the Federal Government has drafted a set of guidelines for the courts and lawyers to consider in dealing with spousal support.  I do not intend to revisit the Guidelines and how they operate in this article.  If you want information as to how they operate in detail and some of the policy decisions behind the Guidelines please look back to some earlier articles written by people in our firm or contact our office to discuss them in more detail and how they may impact your situation.

Basically there are two formulas' - a Without Child Support formula and a With Child Support formula.  The Guidelines also take into account the length of the marriage, gross difference in incomes of the parties and applies various percentages to these items to arrive at a range of spousal support.  There was significant input into the Guidelines by the legal profession, judges and other interested parties.  They are and continue to be a work in progress, however, they have now been published and are in the public domain.

The Spousal Support Guidelines do not carry the same legal impact as the Child Support Guidelines as they are not mandatory.  The Spousal Support Guidelines are truly just that - Guidelines.  They are neither mandatory nor binding on the courts or parties.

The Guidelines do not focus on the time consuming and costly process under the existing system of determining each spouse's needs and costs of living.  It still permits arguments to be made relative to the goal of self-sufficiency under the Divorce Act and to a lesser degree the spouse's entitlement to spousal support. 

There has been a lot of discussion concerning fear that the Guidelines may result in larger spousal support awards, however, the cases that I have reviewed since their release seem to suggest that the courts are using the Guidelines to ensure there is a "check" to ensure that the spousal support is neither too high or too low.

It appears that in shorter to moderate term marriages, the amounts being ordered are not very different then what was being ordered prior to the release of the Guidelines.  Even on long term marriages the ranges are not that out of line, although many might argue that the concept that there should be a sharing of income close to an equal sharing of the parties total gross income is unfair and unreasonable.

What is interesting to note is that there are many courts that are already utilizing the Guidelines to ensure any order made is fair.  It also assists the parties to negotiate a settlement on the issue of spousal support prior to costly court proceedings as legal counsel can confirm that the courts are utilizing them.

Whether you agree with the Guidelines or not, one definite benefit they appear to be having is reducing the number of spousal support applications being heard by the court.  This reality saves everyone (courts, lawyers and parties) time and more importantly money.

By Jim Glass
June 8, 2005