The problem of time limits in medium length marriages

The real “problems” for time limits under the without child support formula are

concentrated in marriages that are neither “long” (20 years or more) or “short” (under 5 years). For marriages that last 6 to 19 years, in every jurisdiction we were told, it becomes increasingly difficult to impose time limits on initial support orders as the marriage lengthens. At some point, in each jurisdiction, the time limits were seen as inconsistent with the current law on duration. At the same time, as we explained above, many lawyers, mediators and judges wanted to see more use of time limits.

It is certainly true that after Moge time limits fell into disfavour because of the associated problems of “crystal ball gazing” and arbitrary terminations of spousal support where self-sufficiency was “deemed” rather than actually achieved. Time-limited orders became less common. However, since Bracklow, some judges have brought back time limits, at least for non-compensatory support orders. While time limits are frequently negotiated by parties in agreements and consent orders, the law on time limits remains uncertain. In some parts of the country trial courts feel bound by appellate court rulings confining time-limited orders to a narrow range of exceptional cases, primarily short marriages without children.

It is in marriages of medium length that duration remains uncertain. Here practice varies and depends upon many factors—regional support cultures and the governing provincial appellate court jurisprudence; whether the context is negotiation or court-ordered support; and whether the support claim is compensatory or non-compensatory in nature. The most that can be said is that current law is inconsistent on the issue of time limits in medium- length marriages.

In practice the issue of duration in medium-length marriages is often put off to the future, to be dealt with through ongoing reviews and variations. In some cases this process of review and variation may eventually generate a time-limited order leading to termination. Under current practice uncertainty about duration can generate low monthly awards, as judges or lawyers fear that any monthly amount of support could continue for a long time, even permanently.

In developing the Draft Proposal, it was our view that reasonable time limits for medium length marriages would be an essential element of the scheme, under both the without child support and with child support formulas, especially if the Guidelines were to generate reasonable monthly amounts. Bracklow emphasized this interrelationship between amount and duration, recognizing that a low award paid out over a lengthy period of time is equivalent to an award for a higher amount paid out over a shorter period of time. As well, we were aware of the importance of providing structure in this area to facilitate negotiation and settlement. Recognizing that this was an area of law in flux, we saw a role for the Advisory Guidelines in helping to shape the developing law. In assessing the compatibility of the time limits generated by the without child support

formula with current law it is important to keep in mind that they are potentially very generous; in medium length marriages they can extend for up to 19 years. These time

limits are thus very different from the short and arbitrary time limits, typically of between three to five years, that became standard under the clean-break model of spousal support for medium-to-long marriages and which Moge rejected. The time limits generated by the formula should be assessed in context—they are potentially for lengthy periods of time and, once marriages are of any significant length, operate in conjunction with generous monthly amounts.

As well, it is important to keep in mind that in the context of the without child support

formula, support claims in medium-length marriages will typically be non-compensatory. In non-compensatory support cases, one strand of the post-Bracklow case law recognizes the appropriateness of time limited orders when the purpose of the support order is to provide a period of transition to a lower standard of living rather than compensation for lost career opportunities. Such use of time limits does not involve “crystal-ball gazing” and the making of arbitrary assumptions about future developments, but rather reflects the basis of entitlement.

In Chapter 8 you will see that we dealt with the issue of time limits in short and medium- length marriages with children somewhat differently, because of the strong compensatory claims in such cases and the need for individualized assessment of recipients’ challenges in over-coming disadvantage resulting from the assumption of the child-rearing role. We recognize that some provincial appellate court jurisprudence may at this point create barriers to the use of the formula’s time-limits by trial judges. We also recognize that the lengthy time limits potentially generated under the without child support formula—up to 19 years in duration—are very different from the typical kinds of time limits with which our law of spousal support is familiar and raise some distinct problems of foreseeability. In our view, the law around time limits will continue to develop and to respond to the durational ranges under the formula. We already see signs of this in the Guidelines case law since the release of the Draft Proposal which offers several examples of judges making somewhat novel time-limited orders for the lengthy durations generated by the

without child support formula.72 In assessing the feasibility of these orders, it is important to remember that time-limited orders are subject to variation. It is thus possible to avoid some of the problems of arbitrary “crystal ball gazing” while reinforcing expectations with respect to the eventual termination of the support order.73

As well, in cases where it is not feasible for courts to impose the time limits generated by the formula in initial orders, the time limits can still be used in a “softer”, more indirect way to structure the on-going process of review and variation and to reinforce

expectations of the eventual termination of the order. This is not dissimilar to the use of the time limits under the with child support formula where they establish the outside limit

72 _{See for example, Hance v. Carbone, 2006 CarswellOnt 7063 (Ont.S.C.J.) (17 ½ yr. marriage; spousal}

support ordered for 15 years in addition to 6 years time-limited provided under separation agreement) and

Bishop v. Bishop, [2005] N.S.J. No. 324, 2005 NSSC 220 (N.S.S.C.) (13 year marriage; final order spousal support for 10 years in addition to 1 year interim). For an example under the with child support formula, discussed in Chapter 8, see Fewer v. Fewer, [2005] N.J. No. 303, 2005 NLTD 163 (N.L.S.C.) (16 ½ yr. marriage; 1 child 15 with wife; spousal support ordered for 16 ½ yrs from separation, subject to variation).

for indefinite (duration not specified) orders. The fact that courts are reluctant to make time limited orders on initial applications does not preclude the eventual use of time limits on subsequent reviews or variations. The Guidelines case law already offers several examples of this “softer” use of time limits in subsequent variations or reviews to bring an eventual termination to what was initially an indefinite order.74

Finally, if the durational limits under this formula, even in their “softer” form, are found to be inappropriate in cases close to the 20 year threshold for indefinite support,

restructuring can be used to extend duration. As is explained in Chapter 10, duration can be extended by restructuring so long as an appropriate downward adjustment is made to amount so as to keep the total value of the award within the global ranges generated by the formula.

7.6

Making the Formula Concrete—Some Examples