Developing Spousal Support Guidelines in Canada: Beginning the Discussion

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December, 2002

Paper prepared for the Department of Justice Canada
by Professor Carol Rogerson*
Faculty of Law, University of Toronto

For additional information about the Spousal Support Advisory Guidelines Project, visit the University of Toronto Faculty of Law Web Site.

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The views expressed in this report are those of the author and do not necessarily represent the views of the Department of Justice Canada.

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(*Professor D. A. Rollie Thompson of Dalhousie Law School has provided significant feedback and advice in the drafting of this paper, and the paper draws significantly on two of his previous works: "Everything is Broken: No More Spousal Support Principles?" unpublished paper prepared for the Continuing Legal Education Society of British Columbia Family Law Conference, July 12-13, 2001 and "And 'Average Justice' for All: Status and Stereotype in Support Law" unpublished paper prepared for the Law Society of Upper Canada and Ontario Bar Association — Family Law Section Continuing Legal Education Programme, "Child and Spousal Support Revisited" Toronto, May 2-3, 2002.)

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TABLE OF CONTENTS

• Executive Summary

1. Introduction
2. The Current Law of Spousal Support
   1. Multiple Theories of Spousal Support or No Theory At All
   2. The Increasing Dominance of "Needs and Means" Analysis
   3. Expansive Basis for Entitlement
   4. Reluctance to Impose Rigid Durational Limits
   5. Quantum is the "Wildcard", but Some Patterns are Emerging
   6. Rebuilding the Law: Next Steps
3. Theories of Spousal Support
   1. Traditional Spousal Support: Status and Fault; The Promise of a Pension for Life
   2. Modern Spousal Support: The Challenge of Finding New Theories
   3. Rehabilitation, Self-Sufficiency and lean Breaks
   4. Compensation for Economic Loss; Forgone Careers and Loss of Opportunity
   5. Income-Sharing Theories
      1. Income Sharing Model I: sharing of marital gains; compensation for contributions and advantages; marital partnership
      2. Income Sharing Model II: recognizing marital interdependency, transition payments, marriage as a community, merger over time
         1. Transition Payments
         2. Merger over Time
         3. Bracklow and Income-Sharing Theories
      3. Implications of income-sharing theories
   6. Basic Social Obligation: the Income Security Model of Spousal Support
   7. Parental Partnership
   8. Drawing Together the Strands: Where Does the Theory Take Us?
4. Models for spousal support guidelines
   1. American Guidelines
      1. The California Guidelines—Santa Clara County
      2. Pennsylvania State Guidelines
      3. Kansas Guidelines—Johnson County
      4. The ALI Proposals
         1. Overview
         2. Marital duration claim for loss of marital standard of living
         3. Primary care-giver claim for loss of earning capacity
         4. Other structural features of the ALI guidelines
         5. Assessment of the ALI proposals
      5. Arizona—Maricopa County
   2. A Canadian Guideline (Dranoff)
   3. Drawing Together the Strands: Some Basic Issues About Structuring Spousal Support Guidelines
5. The Social Context for Canadian Guidelines
   1. Incidence of Spousal Support
   2. Length of Marriage
   3. Marriages with Dependent Children
6. Building Canadian Spousal Support Guidelines from the Ground Up: The Process

• Endnotes

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