Law Times

PAGE 10 FOCUS November 7, 2011 • Law Times Do we rely too much on guidelines? BY JUDY VAN RHIJN For Law Times visory guidelines have brought consistency and structure to a previously hazy area, their very ease of use makes it all too likely that W exceptional circumstances won't get the individual attention they deserve. As a result, parties are overlooking the lesser-known formulas and exceptions to the guidelines given everyone's relief at having an easily calculated and negotiable option at hand. Th e fi rst thing that many law- yers and their clients forget is that the guidelines aren't law. "People automatically assume they ap- ply," says Will Abbott, a partner at MacDonald & Partners LLP in Toronto. "But fi rst you must fi nd an entitlement, then go to Chap- ter 12 for the exceptions, and then look at fl oors and ceilings as in the $350,000 upper limit and hile no one would dispute that the spousal support ad- the $20,000 threshold. Instead, people just go to the software and plug in the incomes." In terms of entitlement, Ab- bott cites the example of reap- portionment of property division as a relevant consideration. "In a short-term marriage, a couple may move into a $2-million home mortgage-free. Th e recipi- ent is eventually going to get $1 million from the home. We say: 'Wait a second. We'll advance $25,000 without prejudice on our sole discretion to use it for equalization or spousal support.' "So further down the track, you can see there is no entitle- ment because your client is giv- ing the money in a lump sum. Th is is a common tool that precludes a judge on a motion from saying, 'I have to make a spousal support order.'" Abbott notes that despite the relative newness of the guidelines, they've very quickly become like a checkbox that precludes this sort of analysis. "In fact, they are only 'People hand up the tables and they are treated as the gos- pel with no exceptions,' says William Abbott. guidelines going to amount and duration. Th ey do not tell you where the range is or take into ac- count prior obligations." Abbott adds that just as law- yers need to be educated on the proper treatment of diverse and fact-specifi c situations, so do the judges. "People hand up the tables and they are treated as the gospel with no exceptions. If nei- ther counsel raises an issue, the judges aren't likely to." Murray Maltz, a family lawyer practising in Toronto, says one of the benefi ts of the guidelines is that practitioners can now advise a client of the range they're in and what they're likely to get. "It pro- motes resolution and settlement, which is a great benefi t to the client. It is so expensive and ex- hausting. But that ease or benefi t has often shortchanged people. It is merely a helpful guide but not a conclusive tool." Maltz believes that the means and needs test, which is still in ex- istence, is often more specifi c and accurate. "Th e [guideline], if you take it as it stands, may minimize the entitlement. You really have to work to show [the guideline] is not going to produce the result the court wishes, which is that the spouse has a lifestyle that is reasonable considering the net Federation of Law Societies of Canada 2012 National Family Law Program MARK YOUR CALENDAR! Marriott Harbourfront, Halifax, Nova Scotia July 16 to 19, 2012 (Opening Reception & Conference Offi ce opens July 15) Please check the Federation of Law Societies website www.fl sc.ca for updates. National Family Law Program 2012 I wish to receive more information about the program when available. Please send this form to: National Family Law Program Federation of Law Societies P.O. Box 244, Woodville, ON K0M 2T0 Phone: (705) 879-3082 (messages) Fax: (705) 374-4131 E-mail: nationalfamilylawprogram@sympatico.ca FederationLawSocieties_LT_Nov7_11.indd 1 Name: Firm: Address: City: Province: Postal Code: Telephone #: ( Fax #: ( E-Mail: ) family income. It's easier just to hand up something nobody has to fi ght about. We have dumbed ourselves down." Maltz believes the correct ap- proach is to look at the relevant history and factors, then consider the needs and means, and only at that point turn to the guidelines to see retrospectively whether the amount makes sense. "If you just look at [the guideline] alone, you do your client a disservice. You should also look at the principles developed by the court over the last 20 years and see if [the guide- line] works." Prior obligations are an ex- ample of a highly relevant factor that the guidelines don't take into account. "Th e court may, in the fi rst instance, look at a formula as it stands without consideration of the alternative family," says Maltz. Many cases often skim over the 11 exceptions listed in Chap- ter 12. In a recent update, the authors of the guidelines, profes- sors Rollie Th ompson and Carol Rogerson, found that judges mentioned the exceptions in only three decisions in 2009 and 2010. In all of the other excep- tional cases, they simply stated that the formula ranges weren't appropriate without any mention of the exceptions at all. According to Shelly Kalra, an associate at MacDonald & Part- ners, looking at the exceptions under the fi nal version of the guidelines is one of the fi rst things people should do. "For instance, debt payments are commonly overlooked," she says. "People take down everyone's assets but don't look at their debts, which will obviously reduce the net dis- posable income." Another common mistake is the use of the basic formu- las instead of those applicable to unusual fact situations. Th e custodial payer formula, which is applicable when the custodial parent is liable for spousal sup- port, is often not applied when it should be. Until recent times, this scenario has usually applied when the husband had custody of the children, but Kalra cur- rently has two matters where the custodial mothers earn more than the $350,000 upper limit and the fathers earn nothing. She believes this relatively new phenomenon is becoming more common. "When you enter who is the ) payer and who is the recipient, the DivorceMate software auto- matically assumes that the child is living with the recipient," says Kalra. "Opposing counsel will al- ways come up with the basic for- mula amounts, but they are very diff erent from the custodial payer formula, in one case $12,000 per month as opposed to $2,000 per month. Obviously, you must take into account that the husband is not paying child support." On the other side of the argu- ment, the husband can argue that when the children stay with him, the lifestyle in his home should be similar to the mother's. "Th is is an occasion when the judges need to look at what his needs actually are," says Kalra. www.lawtimesnews.com 11-11-03 2:33 PM

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