Spousal Support Advisory Guidelines July 2008

15. THE ADVISORY GUIDELINES IN QUEBEC

Inevitably, the application of the Spousal Support Advisory Guidelines to divorce cases in Quebec requires some modifications. The most obvious modifications flow from Quebec’s guidelines for the determination of child support, which differ in important ways from the Federal Child Support Guidelines. A few other modifications are also noted below.

The bulk of Quebec’s guidelines are found in the Regulation Respecting the Determination of Child Support Payments, to which are attached as schedules the child support determination form and the table.[134] The Regulation is made under authority of the Code of Civil Procedure and the Civil Code, both of which also contain provisions governing the determination of child support.[135] These provisions will be referred to here as the child support rules. These rules apply to determine child support under the Civil Code and under the federal Divorce Act.

For these Quebec rules to become the "applicable guidelines" for child support in Quebec divorce proceedings, Quebec was designated by the federal government under the Divorce Act.[136] The Quebec rules thus apply to determine child support in divorce proceedings when both spouses are ordinarily resident in Quebec. Where one of the parents resides outside Quebec, then the Federal Child Support Guidelines apply. The Quebec child support rules therefore apply to most divorces in Quebec.

In Quebec, the computer software used to make income, support and tax calculations is AliForm. AliForm has added the Advisory Guidelines to its collection of family law programs.

15.1 The Definition of Income

In the formulas, the starting point for the determination of income is Guidelines income, a measure of gross income defined in considerable detail under the Federal Child Support Guidelines. The major reason for this choice was to simplify the determination of income by using the same definition for both child and spousal support.

For the same reason, in the Quebec context, the formulas will start with the definition of annual income (revenu annuel) in section 9 of the Regulation Respecting the Determination of Child Support Payments. It too is a gross income measure, with a broad scope very similar to Guidelines income.

15.2 Length of Marriage Under the without child support formula

Under the without child support formula set out in Chapter 7, length of marriage is critical in determining both the amount and the duration of spousal support. Length of marriage is defined as the period of spousal cohabitation, including any period of pre-marital cohabitation, and ending with the date of separation. The inclusion of pre-marital cohabitation in part reflects provincial/territorial family laws accepting cohabitation for a specified period as a basis for spousal support in non-marital relationships.

Under the Civil Code, by contrast, there is no entitlement to spousal support for unmarried cohabitants. In Quebec divorce cases, some judges therefore ignore any period of pre-marital cohabitation, while other judges treat that period as a relevant consideration in determining spousal support in divorce proceedings. That difference of opinion will have important implications for outcomes under the Advisory Guidelines in the application of the without child support formula.

15.3 Child Support and the with child support formula

In the few circumstances where one party lives outside the province and the federal guidelines apply in a Quebec divorce, no adjustments to the with child support formula are necessary. The Quebec child support rules apply in most divorce cases, however, and when these rules apply, some modifications are required.

It should be noted that section 825.13 of the Quebec Code of Civil Procedure clearly gives priority to child support over spousal support, in language similar to s. 15.3(1) of the Divorce Act.[137]

While there are some broad similarities between the two schemes, the Quebec child support rules differ from the federal guidelines in significant respects:

  • both parents’ incomes are taken into account;
  • the floor is higher, as there is a $10,000 basic deduction for self-support;
  • the ceiling for the combined disposable incomes of the parents is $200,000 annually;
  • access to the child of between 20 and 40 per cent of the time by the non-custodial parent affects the amount of child support;
  • additional expenses are defined somewhat differently, especially for extracurricular activities (which need not be extraordinary);
  • the value of the assets of a parent may affect the amount of child support, as may the resources available to the child;
  • an adjustment can be made if child support is more than 50 per cent of a parent’s disposable income;
  • undue hardship does not include a standard-of-living test; and
  • only simple hardship is now required for any adjustment for a parent’s support obligations respecting other children.[138]

The with child support formula set out in Chapter 8 works easily and effectively with the Quebec child support rules. The Quebec rules first generate the respective contributions to child support — the amounts to be backed out in determining each spouse’s individual net disposable income. The percentage ranges under the basic formula are then applied to the remaining pool of INDI to generate the amount of spousal support.

Government benefits and refundable credits also have to be added back to the recipient spouse’s INDI in cases under the Quebec child support rules. As with Guidelines income, these sources of income are not included under the definition of annual income in the Quebec rules.

Step-by-step, here is how the with child support formula works with the Quebec child support rules:

  • First, the Quebec rules use an income-shares formula, where the table sets out the basic annual contribution for the child required jointly from the parents based upon their combined disposable incomes as defined in the Regulation.
  • Second, to this basic annual contribution are added any child-care expenses, post-secondary education expenses and any other special expenses.
  • Third, to determine the payor’s child support, the Quebec rules calculate the respective parental child support contributions based upon each parent’s disposable income. The Quebec rules thus calculate an actual contribution for the recipient spouse, avoiding any need to compute a notional table amount.
  • Fourth, the Quebec rules adjust parental child support contributions explicitly and mathematically for different custodial arrangements, including sole custody, sole custody with access between 20 and 40 per cent of the time (described as sole custody with visiting and prolonged outing rights), split custody (described as sole custody granted to each parent), shared custody, and any combinations of the foregoing arrangements.

The respective contributions, after any such adjustments, then become the basis for calculating individual net disposable income for each spouse and in turn for determining the ranges of spousal support.

Apart from these adjustments, the Spousal Support Advisory Guidelines operate in essentially the same fashion in divorce cases in Quebec as in the other provinces and territories.

15.4 The Current State of the Advisory Guidelines in Quebec

Until the Quebec Court of Appeal decision in G.V. v. C.G. in June of 2006,[139] there had been a great deal of interest in the Advisory Guidelines amongst lawyers and mediators.[140] There were a number of reported trial decisions, some using the Guidelines, others criticising them. After the Court of Appeal decision, the use of the Advisory Guidelines was dramatically reduced. As a result, three years after the Draft Proposal, unlike in the rest of Canada, there has been little practical experience with the Advisory Guidelines in Quebec and thus little feedback to be provided for the final version.

The appeal in G.V. v. C.G. involved a 32-year marriage with three children, two of whom were independent and the youngest resided with the husband. The wife was 55, earning $50,000 per year, while the husband earned $227,000 per year. The wife paid child support to the husband of $15,948 per year. The trial judge had applied the Advisory Guidelines, which produced a range of $4,500 to $6,000 per month under the custodial payor formula, to order spousal support of $4,500 per month, on an indefinite basis.

The Court of Appeal allowed the husband’s appeal and reduced spousal support to $2,705 per month, after engaging in a detailed analysis of the wife’s expense budget. The trial judge was found to have erred in relying heavily upon the Advisory Guidelines rather than engaging in a detailed individual analysis.

The decision did not reject in principle the use of the Advisory Guidelines. For the Court, Forget J.A. stated: "the dossier as it is and the brief pleadings of counsel on this aspect do not permit us, in my opinion, to pronounce a judgment of principle upon the utilization of the Advisory Guidelines." The Court of Appeal did refer to earlier criticisms of the Guidelines contained in trial judgments by Justices Julien and Gendreau. The Court did not disagree with the decision in Yemchuk, but emphasised that the B.C. Court of Appeal had not endorsed an "automatic" application of the Advisory Guidelines without an individual analysis.

Since the Quebec Court of Appeal decision, there have been virtually no trial decisions even referring to the Guidelines. In turn, lawyers and mediators rarely use the Advisory Guidelines now in negotiations and mediations, apart from the occasional reference in preparing a case. Lawyers and mediators now await some sign from the Courts that the Advisory Guidelines can be a useful tool in spousal support cases. Only after a period of prolonged use will it be possible to obtain the necessary practical feedback to make further changes to the Advisory Guidelines in Quebec.

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