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PAGE 10 FOCUS JUNE 23, 2008 / LAW TIMES Final spousal support guidelines out in July BY GRETCHEN DRUMMIE Law Times has been the Ontario Court of Appeal's Fisher v. Fisher, which gave the "Good Housekeeping Seal of Approval" to the spousal support advisory guidelines. In fact, lawyers say that in the few short months since its release, the decision has had an "instant" and "huge" impact. P the advisory guidelines tells Law Times, the court's affirmative support of them makes Fisher a key decision in this province. "I think Fisher is a very impor- tant case in terms of the Court of Appeal's endorsement of the guide- lines in Ontario. And I think it also brings Ontario spousal support law more in line with the law of other provinces in terms of making dis- tinctions between compensatory and non-compensatory cases, and introducing the possibility of time limits in non-compensatory cases," says Prof. Carol Rogerson, of the University of Toronto's Faculty of Law, who developed the guide- lines with Prof. Rollie Thompson, of the Dalhousie University Law School in Halifax. And, one of the authors of erhaps one of the most sig- nificant cases for the fam- ily law bar so far in 2008 the proper role of review orders, the impact of second families, the treatment of post-separation income increases, retroactive spousal support, and the stan- dard of appellate review. Rogerson and Thompson's The decision also addresses revised and "final" version of the guidelines is slated to be made public by the Justice Department in July. Released in January and writ- 08-724 TR_PI_ad#2Gautier.qxd:Layout 1 4/25/08 12:39 PM Page 1 ten by Justice Susan Lang, Fisher is actually the first decision of the court to address the guidelines, and while it does not mandate their use, it "does recognize that the guidelines are increasingly becoming part of the fabric of spousal support decision-mak- ing," say Rogerson and Thomp- son in a paper presented at the Law Society of Upper Canada's family law summit in Toronto in mid-June. "The court indicates that the guidelines 'will assist in informing an appellate standard of review,' and certainly suggests that where the parties have raised the advisory guidelines, trial judges should address them." In their recent paper, Rogerson and Thompson say Fisher offers a "careful and thoughtful analysis of the legal status of the advi- sory guidelines. Understanding the Trust [ 'I think Fisher is a very impor- tant case in terms of the Court of Appeal's endorsement of the guidelines in Ontario,' says Carol Rogerson. guidelines to be a 'reflection of current law' rather than a 'radically new approach,' Justice Lang analo- gized them to a 'distillation of cur- rent case law' and compared their use in the courtroom to 'counsel's submissions about an appropri- ate range of support based on the applicable jurisprudence.'" Fisher involved a 19-year mar- riage without children, in which both parties worked, and it raised many key spousal support issues. Rogerson tells Law Times in her opinion the decision has had two impacts. She says the appeal court's stamp of approval of the guide- lines has meant they're being used more often in Ontario. "It's not that they weren't used before Fisher, but the use varied across the province, and they were used more in some parts than others. I think now we have a very strong endorsement from the Court of Appeal that the guidelines are a useful tool, they are a legitimate tool, and if they are raised by one of the parties at trial, the decision indicates that a trial judge should address them and give reasons for choosing an outcome that is different than suggested by the guideline formula. I think it is a very positive development in terms of the guidelines," she says. Rogerson says she feels the sec- ond implication is that, "Fisher is being misread and misapplied. In terms of time limits I think many judges are reading Fisher as simply an endorsement of time limits in all cases, whereas I think if one reads it carefully, the decision draws a clear distinction between compensatory support cases and non-compensatory support cases, and suggests that the time limit that the court chose there was appropriate because it was a non- compensatory case and the pur- pose of spousal support was to provide a transitional period. "I think some lawyers and judges are making the mistake of thinking that means time limits are appropriate across the board and that's an incorrect reading of Fisher. I'm hopeful the law will sort itself out over time," she says. "It will take some time for the dust to settle." She says she believes that if Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. of some sort. If a spouse has been out of the labour force for many years caring for children it may not be appropriate to ever termi- nate that order completely." Another area where Rogerson feels Fisher is being "somewhat misread" is that people are inter- preting it as a rejection of review orders. "Fisher said that a review order was not appropriate on the facts of that case, which was a non-compensatory case where nothing was going to change, and the purpose of the support order was to provide a period of transi- tion to the lower standard of liv- ing that the spouse in that case, Mrs. Fisher, could sustain on her own. In another case where there is a strong compensatory claim, a spouse has been out of the labour force for many years caring for children, the appropriate spousal support order in that case will be an indefinite order with ongoing reviews at various points along the way to monitor that spouse's efforts to be self-sufficient." Rogerson says she thinks there's an idea that the obligation to promote self-sufficiency isn't there, when in fact it is, and one of the "best ways to monitor that is through reviews." Fisher, she says, is a "nuanced, "someone has been out of the labour force for a number of years in a marriage with kids, time limits are not appropriate. The appropriate response is an order without a time limit with ongoing reviews to monitor the spouse's progress in terms of try- ing to achieve self-sufficiency." Rogerson says that in many cases of longer marriages with children, there will "likely be ongoing top-up spousal support we found that the advisory guide- lines were already being regularly, even routinely, used by lawyers and See Fisher, page 13 careful decision" that has changed the law, but some are misunder- standing it and making the law more extreme than it really is. In their paper, Rogerson and Thompson reported that five months after the release of Fish- er there were 16 reported cases applying the guidelines, seven using the without-child-support formula and nine using the with- support formula. Included is one appellate-level case. In two other cases, judges considered aspects of Fisher but did not use the guidelines. "While still early, some tentative trends can be identified, not all consistent with Fisher," says the paper. "In our travels around Ontario, LLP Leonard H. Kunka - Partner | L. Craig Brown - Partner | Darcy R. Merkur - Partner For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Practice restricted to Family Law www.lawtimesnews.com Barristers Toronto, Ontario M5R 3K4 1235 Bay Street, Suite 800 Tel: (416) 921-1700 • Fax (416) 921-8936 www.nzgfamlaw.com

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