Law Times

PAGE 12 FOCUS November 10, 2008 • Law Times Lawyer says Shields likely not a precedent BY GLENN KAUTH Law Times on spousal support raised eye- brows across the country, some ob- servers say the ruling won't likely set a precedent for other cases. "It's a case that's very much restricted to its own facts," says W hile a recent appeal court judgment that set a short time limit her support indefinitely based in part on a need to compensate her for staying out of the work- force to care for the couple's two children during the marriage. At the time of the initial rul- ing in 2006, the husband, Ken Shields, had been earning an av- erage of $132,000 a year, while Jean had been earning $27,000 at a meat packing plant. In its decision, the appeal to allow her to re-enter the job market in order to earn income leading toward financial self- sufficiency," the appeal judges wrote in their decision. The trial judge himself, in fact, had ruled that because Jean had limited work experience be- fore the marriage, it was "purely speculation" that she had suf- fered a great loss due to her deci- sion to stay at home. Neverthe- It was a 15-year marriage, which is fairly long, but she was not 45 or 50 years old and being thrown out into the workforce at a time when just on the basis of her age she might have difficulty finding employment. Maryellen Symons, the chair of the Ontario Bar Association's feminist legal analysis section. Symons was referring to Shields v. Shields, a case in which the Alberta Court of Appeal ruled that Jean Shields would receive $1,000 a month in spousal support for eight years following a 15-year marriage. The judgment overturned a lower court ruling that awarded court emphasized the need to balance the compensatory as- pects of the case with the need to promote self-sufficiency. "At $1,000 per month, the eight years from the date of separation to the date when the chambers judge heard this mat- ter, in our view, was a realistic time frame for the mother to be compensated for the economic disadvantage she sustained and less, the case raised alarm from women's rights groups such as the Women's Legal Education and Action Fund, which argued that it put homemakers at a dis- advantage since it failed to fully acknowledge their lower status in the workforce. Jean Shields herself said it was precisely her decision to stay home that led to her limited prospects for work. The judgment came at the same time that the spousal sup- port advisory guidelines, which had been in place in draft form since 2005, became finalized during the summer. The guide- lines remain advisory, of course, but while there are no plans to legislate them, one of the legal experts who authored them says she initially worried that the ruling represented a move away from them. In fact, the without-child formula, which allows for sup- port to last up to one year for every year of marriage, could have allowed for a duration that would almost double what the appeal court ordered. But Carol Rogerson, a Uni- versity of Toronto law profes- sor who crafted the guidelines along with Dalhousie Univer- sity professor Rollie Thomp- son, says that although both the quantum and duration seemed low, the case isn't necessarily a cause for worry. She points out that the court gave significant weight to the fact that Jean Shields was just 34 at the time of separation in 1998. "The chambers judge erred when he did not sufficiently consider the fact that the moth- er was only 34 years old at the time of separation, that the mat- rimonial property had been di- vided equitably, that the couple had a modest standard of living while together, that there was no longer a need for child care, and that the mother had achieved a degree of self-sufficiency with full-time employment at a level consistent with her work skills," the appeal court judges ruled. Further, the higher court noted that indefinite support rulings aren't the norm in cases where the recipient no longer has child care responsibilities. In Shields' case, both children had already turned 18. For Symons, although LEAF was right to raise concerns, she feels the decision was consistent with the case law. "It was a 15-year marriage, which is fairly long, but she was not 45 or 50 years old and being thrown out into the workforce at a time when just on the basis of her age she might have diffi- culty finding employment," says Symons. "It's not as though this was someone who put her own pro- fessional development on hold," she adds. On the guidelines now being finalized, Symons expects that the justice system, including in On- tario where the Court of Appeal has endorsed them, will continue honing its use of them. caseAlert - Family Law An easy to use electronic service that keeps you up-to-date with the latest decisions in family law. Each week subscribers receive an e-mail bulletin summarizing recent court decisions in the family law area which are linked to the case digest and the full text decision in pdf format. Click "Access online products" to sign up Annual subscription price $405 • P/C 0534700999 $21 for each additional recipient • P/C 0534710999 Child Support Guidelines Service Terry W. Hainsworth Provides commentary and analysis, including reference to reported and unreported cases arranged topically, and includes the full text of the Federal Child Support Guidelines (excluding tables) in a separate appendix for easy reference. Looseleaf & binder • $149 • Supplements invoiced separately (4-5/yr) P/C 0493030000 • ISBN 0-88804-257-4 Divorce Act Manual Terry W. Hainsworth This nationally relevant text focuses on how the trial courts and provincial Courts of Appeal are applying recent decisions from the courts and the guidelines in the cases they address. Areas covered include the shifting definition of "child of the marriage", calculating income under the child and spousal support guidelines, the factors and objectives of spousal support, custody and jurisdiction. Main work, binder & annual subscription $284 P/C 0467030000 • ISBN 0-88804-170-5 Family Law in Ontario: A Practical Guide for Lawyers and Law Clerks Michael G. Cochrane This text provides all the guidance you need to meet the demands of fulfilling your responsibilities in the family law practice area, from how to deal with domestic violence to preparing your client for trial, and more. Looseleaf & binder • $154 • Supplements invoiced separately (1-2/yr) P/C 0441030000 • ISBN 0-88804-088-1 Ontario Family Law Act Manual, Second Edition Terry W, Hainsworth Inside find the Act, Rules of Practice and Federal Child Support Guidelines (with Ontario Tables) annotated with extensive commentary and case discussion. Looseleaf & binder • $203 • Supplements invoiced separately (4-5/yr) P/C 0485030999 • ISBN 0-88804-103-9 O'Brien's Encyclopedia of Forms, Eleventh Edition — Ontario, Family Law, Division VI Editor: James Herbert Pensions Consultant: Ben Dibben Founding Editors: The Late H. Douglas Stewart, Q.C. and The Honourable Justice Mary Lou Benotto Internet version included with your print subscription With its adaptable forms and precedents and commentary, this is an indispensable resource. It covers a broad range of topics and is logically organized in an efficient manner helping practitioners to deal with family law issues from the initial meeting with a client to the conclusion of an appeal. Available on the Internet and print, this resource saves you time. Looseleaf & binder with Internet access • $195 Supplements invoiced separately (1-2/yr) P/C 0895030000 • ISBN 0-88804-134-9 Ontario Family Legislation Consulting Editor: Elliot S. Birnboim Ontario Family Legislation is an annual consolidation of statutes and regulations most frequently used in family law in Ontario and includes the Federal Child Support Guidlines. Perfectbound • 840 pp. • Published April each year • Standing order $74 P/C 0823140000 • Current edition only $84 • P/C 0823010000 ISSN 1198-211X • Multiple copy discounts available Family Mediation: A Guide for Lawyers Cinnie Noble This comprehensive guide describes the basic features of family mediation, how it differs from other types of mediation and how it is conducted. It also takes you through each step of the process, providing practical advice on how to effectively represent clients in mediation. Perfectbound • 183 pp. • 1999 • $60 • P/C 0944010000 ISBN 0-88804-308-2 For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca CA016 Canada Law Book is A Division of The Cartwright Group Ltd. • Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. www.lawtimesnews.com CA016 (LT 1-2x4).indd 1 11/5/08 2:30:33 PM LT1110 Marketplace EMPLOYMENT WANTED SERVICES - Available law clerk. Proficient in estates, real estate, litigation, ADR, cor- porate/commercial and labour and employment. Part/full time. Messages 2485. (416) 621- A+ IP, TAX, Labour & Other Opportunities at www.smart streetlegal.com. * Confidentiality To advertise call 905-841-6481 "I think as time goes on, the use of them will become more refined, and how to deal with situations where they pro- duce a result that doesn't seem right will also become more refined," she says. Symons also notes that she feels the guidelines do ac- count for the gendered aspects of marriage, particularly the career sacrifices mostly women experience. She adds that she's not wor- ried the Shields case will set a precedent. "No other cases outside of Alberta have re- ferred to it, and I think that's because everybody recognizes that this case turns on its own facts and doesn't really change anything in the spousal support principles." LT

• Cover
• Fatboys Running
• Avoiding Equalization
• Focus On Family Law