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LEGAL REPORT: FAMILY LAW one of two formulas — one for couples with children and another for couples without kids — in order to determine a range for both amount and duration of an award. But while courts in New Brunswick, Ontario, and British Columbia have endorsed their use, in Que- bec, the Court of Appeal has criticized them. As a result, the guidelines rarely come up in court there, with many lawyers using them "en cachette," or behind closed doors, says Kear- Jodoin. "I don't hear about them in the courts," says Kear-Jodoin, noting the July 2006 Que- bec Court of Appeal ruling that reduced a spousal support award determined by the advisory guidelines has leſt lawyers afraid to raise them in front of judges. Elsewhere, however, lawyers and judges are making regular use of the guidelines. In British Columbia, for ex- ample, family lawyer Kathleen Walker finds that while the courts have been applying them frequently since a 2005 appeal ruling in Yemchuk v. Yemchuk, the trend has increased even more since "In order to get to that little bit more, without guidelines it costs you a lot — ROLLIE THOMPSON, DALHOUSIE LAW SCHOOL Rogerson and Thompson released their final version. "What I'm finding is that [judges] will not do anything but what's set out in the spousal support guide- lines," says Walker. "They're applying them much more rigorously than they were even six months ago." It's not only in Quebec that the guide- lines come under criticism, however. more money [to litigate]. You're trading off legal fees against outcomes here." Walker, for example, says although she always carries a printout of the guide- lines to court, she finds the awards un- der them are more generous than what she used to see. "I think they're too high. I think if I had to come up with that kind of money every month, I don't know how I would do it." Thompson, though, says although regional variations in spousal sup- port awards mean some people will find the guide- line results too high or too low, the benefit comes from less arguing in court since, in theo- ry, they will make it easier for divorcing couples to settle and allow judges to ren- der decisions faster. "I think that you do hear from some people that they feel in some cases you could get a little bit more [support]," says the Dalhousie Univer- sity law professor. "But you know what my answer to that is? In order to get to that little bit more, without guidelines it costs you a lot more money [to litigate]. You're trading off legal fees against out- comes here." The guidelines project, which began as an initiative of the federal Department of Justice in 2001, aimed to bring consis- tency to an area of law that had become increasingly subject to judicial discretion following two landmark Supreme Court of Canada cases on spousal support. "The leading decisions on spousal support law, which would be particularly Moge and Bracklow, were cases about entitlement and they painted very broad strokes," says Thompson. "Bracklow, in particular, recognized a fairly broad basis for enti- tlement on a non-compensatory basis, as in not compensation for economic dis- advantage but really need. As a result of that, a lot of issues got pushed from en- titlement to quantum and duration, and people were having immense difficulty finding predictability and consistency. I think those difficulties between 1999 and 2000 [or so] were what fed an interest in advisory guidelines." Getting to a final version wasn't always easy, however. For Thompson, the most straightforward area was developing a 56 NO VEMBER / DECEMBER 2008 www. mag.com