Our BC Court of Appeal has applied the draft Spousal Support Advisory Guidelines in the last 5 BC family law and divorce decisions in Tedham, Yemchuk, Warkentin, Redpath and Stein. The new test is that the SSAG must be used by the courts except in exceptional circumstances. The Guidelines are complicated but a simple summary is:
• The formula for cases where no child support is involved suggests an annual payment of 1.5% to 2% of the difference between the spouses’ gross incomes for each year of marriage or cohabitation, up to a maximum of 50%. Spousal support is to be paid for a duration of six months to a year for each year of marriage, and is indefinite for marriages of 20 years or longer. Say you were married 10 years, your gross income is $300,000 and your ex-spouse’s is $60,000. To determine your minimum support payment, multiply your income difference ($240,000) by 1.5, then multiply again by 10 (number of years of marriage). The grand total: $36,000 per year. Given the duration of your marriage, you’d be expected to pay this amount for at least five years.
• With child support, the formula is based on the combined individual net disposable income (INDI) of both spouses. Add together your and your ex-spouse’s INDIs, then multiply by 40% to 46% of the combined INDI: That’s the amount of support likely to be awarded to the lower-income spouse.
In Redpath, the Court of Appeal provided the following analysis of how important the draft advisory guidelines are (see the portion highlighted in red):
Spousal Support
[37] The last area of contention is the award of $3,500 per month ordered to be paid to Ms. Redpath by way of spousal support, an order to be reviewed in three years’ time. The wife’s first ground of appeal on this point is that although she relied at trial on the Spousal Support Advisory Guidelines and did a “Support Mate” calculation, the trial judge did not refer in his reasons at all to the Advisory Guidelines or to any calculation he had done in reaching this amount. In the wife’s submission, this alone is an error of law. Counsel naturally refers to Yemchuk v. Yemchuk, 2005 BCCA 406, in which Prowse J.A. stated for this court:
This brings me to the question of whether, and to what extent, I should rely on the Guidelines in determining the quantum of support. In answering that question, I will briefly describe the Guidelines, as I understand them.
(e) The Spousal Support Guidelines
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).
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.
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.
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. ‚Ķ 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. [Paras. 60-4; emphasis added.]
[38] I do not read Yemchuk as indicating that the Guidelines must as a matter of law be used by a judge in determining support. The same is true of this court’s judgments in Tedham v. Tedham, 2005 BCCA 502 (see especially paras. 75-6), and Kopelow v. Warkentin, 2005 BCCA 551 (see especially paras. 75-6). However, as a “useful tool”, the Guidelines may indicate whether a proposed award is “in the range” of what should be a pattern of predictable maintenance awards across the province and across Canada
[39] Counsel for Ms. Redpath also submits that the trial judge’s reasoning overemphasized the wife’s means and her obligation to become economically self-sufficient – factors that are less important in the context of a long marriage during which an affluent lifestyle was enjoyed, and after which a considerable stream of income can be expected to continue. There is also the fact that Ms. Redpath, who is now age 41, did not work outside the home to any significant degree during the marriage, but stayed home by mutual agreement to raise the couple’s five children.
[40] The standard of review applicable by an appellate court to questions of support has been stated in a series of cases by the Supreme Court of Canada, most notably Hickey v. Hickey [1999] 2 S.C.R. 518. At paras. 10-11, L‚ÄôHeureux-Dub?© J. stated for the Court:
When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. These principles were stated by Morden J.A. of the Ontario Court of Appeal in Harrington v. Harrington (1981), 33 O.R. (2d) 150, at p. 154, and approved by the majority of this Court in Pelech v. Pelech, [1987] 1 S.C.R. 801, per Wilson J.; in Moge v. Moge, [1992] 3 S.C.R. 813, per L’Heureux-Dub?© J.; and in Willick v. Willick, [1994] 3 S.C.R. 670, at p. 691, per Sopinka J., and at pp. 743-44, per L’Heureux-Dub?© J.
and at para. 12:
There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [Emphasis added.]
[41] In Hickey, the Manitoba Court of Appeal was found to have erred by giving primacy to the factor of self-sufficiency in reducing a trial judge’s award of maintenance, and to have substituted its own opinion that the original award was “entirely sufficient”. On one view of this case, the facts here present the opposite situation: regarding the wife’s expenses as excessive, the trial judge ruled that $3,500 per month would be sufficient, and on appeal, it is said he erred in giving primacy to the factor of self-sufficiency. Hickey instructs appellate courts that they are not entitled to intervene simply because they would have “balanced the factors differently” than the trial judge. On the present state of the law, then, we may be precluded from interfering with the trial judge’s award.
[42] Cases such as Hickey, however, were decided prior to the introduction of the Advisory Guidelines. Now that they are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention. In the case at bar, I find that although the trial judge obviously considered the appropriate factors and did not misapprehend the evidence, the figure of $3,500 per month reached by him is simply too low in light of the Guideline range of $4,542 and $5,510 per month. Mr. Redpath will in future continue to enjoy an affluent lifestyle, and can afford for Ms. Redpath to do so as well. With the help of the Guidelines, I would fix her spousal support at $5,000 per month. In recognition of the young ages of the youngest children and the wife’s need for training, I would also order that the award should be reviewable after five years rather than three. I would allow the appeal of the spousal maintenance award to that extent.
In the recent case of Stein, the Court referred to Redpath with approval:
2. Spousal Support
[40] The question for us on the order of spousal support is whether the trial judge erred in principle, seriously misapprehended the evidence or was clearly wrong: Hickey v. Hickey, [1999] 2 S.C.R. 518, 46 R.F.L. (4th) 1.
[41] Mrs. Stein contends that the trial judge erred in principle and law by limiting her spousal support to 42 months in the circumstances of the case. She says further that the amount awarded both fails to meet the objectives of s. 15.2 of the Divorce Act, R.S. 1985, c. 3 (2nd Supp.) and is inconsistent with Moge v. Moge, [1992] 3 S.C.R. 813, 43 R.F.L. (3d) 345. She notes the length of the parties’ cohabitation, the fact that the two young children reside with her, the fact that since 1992 she had not worked outside the home, the wide disparity in income-earning ability of the parties, and the interim arrangement of $3,000 non-taxable spousal support she received post-separation.
[42] The framework for the order of spousal support is s. 15.2 of the Divorce Act:
15.2 …
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
…
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[43] All four objectives of s. 15.2(6) must be taken into account when spousal support is claimed: Moge v. Moge. Further, the factors that must be considered and the objectives are relative to the circumstances. For example, the needs of the parties (s. 15.2(4)) and the question of self-sufficiency (s. 15.2(6)(d)) are relative to the standard of living enjoyed by the parties. While neither party is entitled to replication of that standard, where the means are sufficient, its approximation will be one consideration for the Court.
[44] In particular, in considering spousal support, a court must consider the length of the cohabitation (s. 15.2(4)(a)) and the function of the parties during the marriage (s. 15.2(4)(b)). In looking at the economic disadvantages arising from the breakdown of the marriage (s. 15.2(6)(a)), any financially limiting consequences of a custodial parent’s role is a relevant factor: Moge v. Moge.
[45] In this case, the trial judge focused his reasons for judgment upon his expectation that in the future Mrs. Stein would be able to earn a significant income in the animation industry. That expectation is a proper consideration for the trial judge. Indeed, given the medium length of the marriage, and the many years Mrs. Stein still has to participate in the paid labour force, this was an important consideration.
[46] But, with respect, the trial judge‚Äôs considerations must be multi-faceted. The reasons for judgment do not demonstrate consideration of the other factors or objectives discussed in Moge and Bracklow, [1999] 1 S.C.R. 420, 44 R.F.L. (4th) 1, such as any financial limitation inherent in Mrs. Stein’s provision of the children’s primary residence, or the standard of living enjoyed by the parties prior to separation, or the spread in income available to the two households.
[47] It must be remembered that the income potential of Mrs. Stein was just that, potential. While her efforts to obtain training gave every reason to believe that she would accomplish her goal of remunerative work, that prospect was simply an expectation. Chief Justice McEachern, addressing similar optimism in Nataros v. Nataros (2000), 4 R.F.L. (5th) 290, 2000 BCCA 55, observed:
[6] Second, the trial judge time limited the maintenance award to 30 months. This was the estimate of the time that would take her to complete her education. Having regard to the authorities cited to us, particularly Sitwell v. Sitwell (1998), 108 B.C.A.C. 278; Coulter v. Coulter (1998), 114 B.C.A.C. 135; Swiderski v. Dusseault (1998), 108 B.C.A.C. 194, all judgments of this Court; and Kent v. Frolick (1996), 23 R.F.L. (4th) 1 (Ont. C.A.), it is apparent that time-limited orders for maintenance are not the usual rule. I do not suggest that a time-limited order should never be made or included in a maintenance order, but in this case I think the order is too severe as presently stated as this tragedy may not play out strictly as expected.
[48] In this case, the disparity between the parties’ incomes, incorporating the award of spousal support, was the basis for an order splitting extraordinary expenses 80/20 for purposes of s. 7 of the Federal Child Support Guidelines, SOR/97-175. The parties cohabited for 12 years. Mrs. Stein had no recent experience of working in the paid labour force. They had enjoyed an affluent standard of living while they cohabited. The two children are young and still require a parental presence at home, with energy to provide them guidance. Balanced against this is the value of the assets received by Mrs. Stein from the property division (which Mr. Stein also received), Mrs. Stein’s relative youth, and her enthusiastic pursuit of training that holds good prospects for remuneration. These are, I consider, the salient features of the case for purposes of spousal support.
[49] In my understanding of the reasons for judgment, the trial judge, while aware of the case authority, addressed only one aspect of s. 15.2, contrary to the instruction in both Moge and Bracklow. With respect, I do not think it can be said that he fairly apportioned the consequences of the breakdown of the marriage or considered the disparity in means and circumstances of both parties. And, in circumstances in which there was no reason to consider that Mrs. Stein’s efforts to become self-sufficient were dilatory, he was precipitous in setting a firm date by which, on his reasoning, Mrs. Stein would be able to replace the modest support he ordered in her favour.
[50] There are two issues: (i) the quantum of spousal support; and (ii) the duration of the support obligation. I turn to the quantum issue first.
[51] Mrs. Stein suggested a level of spousal support derived from the Spousal Support Advisory Guidelines (2005). The trial judge rejected their use, saying they are not law, and that he was not bound by anything in them. That is so, but as Madam Justice Prowse observed in Yemchuk v. Yemchuk (2005), 44 B.C.L.R. (4th) 77, 16 R.F.L. (6th) 430, 2005 BCCA 406:
[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, 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 counsel’s submissions.
[52] Under the Guidelines, the amount of support which would be payable by Mr. Stein to Mrs. Stein ranges from $3,920 per month to $4,883 per month. As the Guidelines are intended to reflect the current law, the Guidelines suggest that the amount awarded is low, as it was in Redpath v. Redpath, 2006 BCCA 338.
[53] Nor does the award compare favourably with the interim spousal support of $3,000 after taxes although Mrs. Stein’s income at the time of trial remained as it had been while she pursued her studies.
[54] Mr. Stein’s annual income at the time of trial was $207,432.74, or $17,286 per month. Mrs. Stein’s income, before any support, was limited to the amount she received as rent for a portion of her home ($600 per month) plus tax credits and benefits under government programs. After payment of child support (excluding extraordinary expenses), Mr. Stein’s income was just over $15,000 per month and Mrs. Stein’s income was $2,886 per month plus the credits and benefits. Spousal support in the amount of $2,500 still leaves a large gap between the incomes. Indeed this gap is reflected in the 80/20 apportionment of extraordinary expenses under the Federal Child Support Guidelines.
[55] This result, in my view, is far from meeting the objectives of the Divorce Act and does not reflect the factors that a court is required to consider. I consider that in the short term, at least, the amount of spousal support is considerably less than is adequate to meet the objectives of s. 15.2 of the Divorce Act. Considering that Mrs. Stein is now residing in the matrimonial home, I would substitute for the sum of $2,500 per month, the sum of $4,200 per month. This will require a change in the calculation of payments for extraordinary child care expenses under s. 7 of the Federal Child Support Guidelines, to lessen Mr. Stein’s share and increase Mrs. Stein’s share.
[56] Mrs. Stein urges this Court to make the order for spousal support indefinite.
[57] I agree with Chief Justice McEachern in Nataros that a time-limited order is unusual. It is an expression of the "clean break" model of marriage breakdown discussed in Bracklow. Bracklow recognized that there is value in the model, but also that it co-exists in the legislation with the mutual obligation model. The latter model addresses the interdependence of the parties and intermingling of their affairs brought on by the passage of time.
[58] In this case, the trial judge was impressed with the efforts made by Mrs. Stein to become self-sufficient (with the financial assistance of Mr. Stein who paid her substantial tuition fees). As the trier of fact, the trial judge considered that on the issue of spousal support, a clean break was possible. That conclusion, however, is based on expectancy. As in Nataros, I consider that the order is too severe.
[59] One alternative, between a time-limited order and an indefinite order for spousal support, is a time-limited order subject to review. In the recent case of Leskun v. Leskun, 2006 SCC 25, the Supreme Court of Canada explained how a review order may be justified by "genuine and material uncertainty at the time of trial" on a specific aspect of the original order. Such was the case in Nataros and, in my view, such is the case here. The ability of Mrs. Stein to find remunerative employment was up in the air but would be known within the life of the time limitation. That being so, as in Nataros, I consider that the termination of the spousal support obligation should be reviewable by a judge of the Supreme Court of British Columbia, and I would direct that Mrs. Stein be at liberty to apply to a judge of the Supreme Court of British Columbia prior to December 2008, for a review of that termination date. This is in addition, of course, to the rights of both parties to apply for a variation of maintenance under the variation provisions of the Divorce Act.
It is clear from these cases that the Court will apply the guidelines except in exceptional circumstances. The problem is that the guidelines are not law only advisory and the current form is a draft one expected to be revised. The writer is part of a focus group that will be meeting shortly with the authors of the draft report to assist in revising the document. Hoipefully improvements will be made to the guidelines to enable a fair assessment of spousal support.