British Columbia Family Law Blog

e)       The Spousal Support Guidelines

[61]            In my view, the best source of the history and nature of the Advisory Guidelines is the report prepared by Professors Carol Rogerson and Rollie Thompson dated June 2005 entitled Spousal Support Advisory Guidelines: A Draft Proposal (which I commend for its clarity to any writer embarking on this subject). 

[62]            An important point to make at the outset of this discussion is that the proposed Advisory Guidelines are just that — proposed advisory guidelines.  They are in a draft form and are subject to ongoing consultation with various interest groups.  Further, unlike the Federal and Provincial Child Support Guidelines (which, in fact, are not guidelines at all, but form part of the substantive law), there is no plan to draft legislation to implement these Advisory Guidelines as law.  Rather, their purpose is to be advisory only, with a view to bringing more certainty and predictability to the determination of spousal support under the Act.  They are a response to what has been perceived as a significant lack of predictability in spousal support awards, which commentators suggest are even less predictable following the Bracklow decision. 

[63]            It is also important to note that the Advisory Guidelines do not deal with entitlement to support, but are only relevant to issues of quantum and duration of support once entitlement has been resolved.  Nor do they address situations in which there are prior agreements between the parties dealing with spousal support.

[64]            It should also be stressed that the Advisory Guidelines are intended to reflect the current law, rather than to change it.  They were drafted by the authors after extensive analyses of the authorities regarding spousal support across the country, particularly the Moge and Bracklow decisions and those following thereafter.  As recently as July 2005, in the recent decision of W. v. W., 2005 BCSC 1010, [2005] B.C.J. No. 1481 (QL), Madam Justice Martinson reviewed numerous decisions in British Columbia following Moge and Bracklow and stated (at para. 25) that in her view, the Advisory Guidelines were in accordance with those authorities.  While decisions can undoubtedly be found in which the result would not accord with the Advisory Guidelines, I am satisfied that their intention and general effect is to build upon the law as it exists, rather than to present an entirely new approach to the issue of spousal support.  For that reason, like Madam Justice Martinson and many other judges, I have no hesitation in viewing the Advisory Guidelines as a useful tool to assist judges in assessing the quantum and duration of spousal support.  They do not operate to displace the courts' reliance on decided authorities (to the extent that relevant authorities are forthcoming) but to supplement them.   In that regard, they do not constitute evidence, but are properly considered as part of counsels’ submissions.

[65]            The Advisory Guidelines set out two basic formulas for the determination of spousal support: the "without child support formula" and the "with child support formula".  Since Mr. and Ms. Yemchuk have no dependent children, the "without child support formula" is the relevant formula in this case.  Both formulas use income sharing as the method for determining spousal support, rather than budgets.  Given the dubious and unhelpful nature of the budgets which are presented in many cases (a fact commented upon in the authorities from time to time), the move away from a budget-laden analysis is appealing.  This is particularly so in cases, such as this one, in which compensatory and non-compensatory factors come into play.

[66]            The formulas set out in the Advisory Guidelines are also useful in that they provide ranges for the quantum and duration of support, rather than precise numbers.  This is designed to provide flexibility by permitting individual factors relevant to spousal support to be taken into account. 

[67]            The "without child support formula" is described in the executive summary to the report as follows (p. v):

The without child support formula is built around two crucial factors:  the gross income difference between the spouses and the length of the marriage.  Both the amount and the duration of support increase incrementally with the length of the marriage….  The idea that explains this formula is merger over time: as a marriage lengthens, spouses more deeply merge their economic and non-economic lives, with each spouse making countless decisions to mould his or her skills, behaviours and finances around those of the other spouse.  The gross income difference measures their differential loss of the marital standard of living at the end of the marriage.  The formulas for both amount and duration reflect the idea that the longer the marriage, the more the lower income spouse should be protected against such a differential loss.  Merger over time captures both the compensatory and non-compensatory spousal support objectives that have been recognized by our law since Moge and Bracklow.

[Emphasis in the original]

[68]            The without child support formula is set forth as follows (at vi):

The Without Child Support Formula

Amount ranges from 1.5 to 2 percent of the difference between the spouses' gross incomes (the gross income difference) for each year of marriage (or, more precisely, years of cohabitation), up to a maximum of 50 percent.  The range remains fixed for marriages 25 years or longer at 37.5 to 50 percent of income difference.

Duration ranges from .5 to 1 year for each year of marriage.  However, support will be indefinite if the marriage is 20 years or longer in duration or, if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more (the rule of 65).

[Emphasis in original.]

[69]            In using this formula, a spouse's income is determined in the same manner as in the Federal Child Support Guidelines.   

[70]            Under these proposed Advisory Guidelines, the amount of support which would be payable by Ms. Yemchuk to Mr. Yemchuk ranges from $1,190 per month to $1,580 per month (in rounded figures).  At the low end of the range, Mr. Yemchuk's annual gross income would be $51,250 and Ms. Yemchuk's income would be $60,750.  At the high end of the range, Mr. and Ms. Yemchuk would each have income of approximately $56,000. 

[71]            The only authorities to which the Court was referred with respect to the quantum of support relate to the basic principles of support which I have referred to earlier in these reasons.  As Madam Justice McLachlin indicated in Bracklow, the considerations in determining quantum of support are interrelated to those applied in determining entitlement.  In that regard, I have found that Mr. Yemchuk's claim for support rests on both compensatory principles (relating to the circumstances and consequences of his early retirement) and need.  I have also found that equitable sharing of the economic hardship arising from the breakdown of the marriage, including a reduction of the disparity in relative standards of living of the parties is the most important principle applicable to spousal support in this case.  The ranges of support set out in the Advisory Guidelines are a factor which I have considered in attempting to give effect to these principles, after taking into account the overall financial circumstances of the parties.  In that regard, the expense lists of the parties are of limited assistance, particularly since Mr. Yemchuk has clearly restricted his expenses to a very basic level reflecting the significantly reduced standard of living he is experiencing as a result of the breakdown of the marriage.  Ms. Yemchuk's list may more closely reflect the standard of living during the marriage, but it involves a running and increasing deficit which reflects her attempt to maintain a standard of living which is not sustainable now that the parties are living separate lives. Unfortunately, both parties have reason to be concerned about their future security. 

[72]            Taking into account the fact that Ms. Yemchuk has increased needs for additional income to support her expenses relating to employment (including clothing, transportation expenses and significant compulsory employee deductions, not including pension and income tax), I conclude that the appropriate quantum of support in this case is $1,100 per month, reduced to $800 per month as of June 1, 2005 when Mr. Yemchuk became entitled to his Old Age Security Pension.  These payments shall be made on the first day of each and every month (or in equal instalments on the first and fifteenth day of every month if Ms. Yemchuk is paid bi-monthly) up to and including the last day of the month preceding Ms. Yemchuk's retirement.