Principio de Publicidad a la luz de la Jurisprudencia Constitucional

Applying the two tests for duration under the with child support formula, the range for duration will be determined by whichever test produces the longer duration at both the lower and upper ends of the range. Where those bounds are determined by the length-of- marriage test, there seems to be little difficulty. The range is the same as that under the

without child support formula. A durational range of half the length of the marriage to the length of the marriage is intuitively understandable.

The age-of-children test is not as simple. It is tied to the presence of children in the marriage, and the economic disadvantages that come with the obligation to care for children. Length of marriage alone no longer provides a measure of the duration of the spousal support obligation, as the case law increasingly demonstrates, even if some spouses think it should. The age-of-children test will usually apply in shorter marriages. For shorter marriages with young children, this test will generate a long potential duration at the upper end of the range, one that can run as long as the date that the last or youngest child finishes high school, an outcome that raised some concerns during the feedback process. For very short marriages with very young children, the lower end of the range under the age-of-children test, added in the revision process, has also raised some concerns.

Critical to understanding these durational issues is the compensatory rationale for spousal support in these shorter marriage cases. Most of the economic disadvantage in these cases is not in the past, but in the future; it is the continuing disadvantage that flows from the obligations of child care and their impact upon the ability of the recipient parent to obtain and maintain employment. Hence the importance of the age of the children in fashioning durational limits. Our understanding of the current law, based both upon reported cases and discussions with lawyers and judges in our cross-country consultations, is that the law applicable to these cases is in flux, showing increasing recognition over time of the on-going economic disadvantage flowing from post-separation child-care responsibilities. The upper end of the range for duration under the age-of-children test—up until the last or youngest child finishes high school—may appear long in a shorter marriage case. Consider Bob and Carol again in Example 8.2, where spousal support could potentially last as long as 14 years after an 8-year marriage, if the children are 4 and 6 in Carol’s primary care at the date of separation. If duration were tied to the length of the marriage alone, spousal support would otherwise terminate when the children were 12 and 14 years old. But at this point, Carol’s employment position may still reflect continuing economic disadvantage and limitations placed on her ability to achieve full-self-sufficiency by her post-separation custodial responsibilities. It may only be as the children reach their teenage years that she can focus more on improving her employment position.

continuing child care obligations. A good way to test this outside durational limit is to think about the labour market position of the primary parent if one of those children had special needs or developed problems in their teenage years.

Slightly different problems are raised by the lower end of the durational range under the

age-of-children test—until the youngest child starts attending school full-time. In the majority of cases, as our consultations revealed, this lower end of the durational range will not be contentious. In marriages of even four or five years, the age of children test will begin to yield results similar to the lower end of the durational range under the

length-of-marriage test. Indeed, the major concern raised by the introduction of the lower end of the durational range in cases of shorter marriages with children, whether defined by length of marriage or age of youngest child starting full-time school, has been that it will create a “ceiling” and stunt the progressive development of the law in this area. However, in some cases, of very short marriages, the age-of-children test has raised concerns that it sets the lower end of the durational range too high—i.e., that it establishes a “minimum duration” that is too long because it exceeds the length of the marriage. The kind of case that raises this concern is a fairly extreme set of facts: a marriage as brief as one or two years, with an infant less than a year old. In this

hypothetical case, assuming the child would start full-time school at age 6, the lower end of the range for duration under the age-of-children test would be five years, which some would suggest is too long for such a short marriage.

In responding to this concern, we note that there are a number of other important dimensions to spousal support in these cases, in addition to duration, that soften the impact of this lower end of the range for duration. First, the lower end of the range for duration does not guarantee any particular amount of support. The formula range is driven by the number and age of the children, the spousal incomes, the child custody arrangements, child support amounts, section 7 contributions and tax positions. Much will turn upon the employment status of the recipient, and the recipient’s ability to return to the paid labour market. A recipient is always under an obligation to make reasonable efforts towards self-sufficiency, and, on particular facts, those efforts may be subject to scrutiny in a review scheduled well before the youngest child starts full-time school. Second, in some situations, income will have to be imputed to the recipient, either part- time or full-time, on an individualized basis, often through the process of review. Third, entitlement is always an issue, before reaching the questions of amount and duration under the Advisory Guidelines. In some cases of strong facts—i.e. a recipient with a strong connection to the work-force—there may even be a finding of no entitlement so that the lower end of the range for duration is not engaged. The lower end of the

durational range does not create a “minimum entitlement.” Finally, we have said all along that the durational limits under the with child support formula are “softer”, less

formulaic, than those under the without child support formula. In Moge, the Supreme Court of Canada emphasized the need for individualized decision-making on self- sufficiency in compensatory support cases and duration under the with child support