Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Spousal Support"

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==Changing Interim Orders for Spousal Support==

The Court of Appeal has said that interim orders for spousal support are intended to be temporary, rough-and-ready decisions intended only to tide the parties over until a final order is made, rather than an exhaustive review of the merits of a claim for spousal support. As such, the courts often prefer to allow interim orders to stand when someone wants to change them, and someone asking to vary an interim order cannot expect to just walk into court and have the issue heard again; there must be a good reason why a change in the interim order is required. In the 1999 case ''Hama v. Werbes'', the Supreme Court said that interim order should only be varied when:

#a loss of supplementary income, such as employment income or WCB benefits, without which the recipient cannot support him- or herself on the amount of spousal support presently being paid;

#an unexpected increase in expenses, such that the amount of spousal support being paid becomes inadequate; or,

#an unexpected increase in child care obligations, because of, for example, the extended illness of a child or the birth of a new child, such that the spousal support paid is no longer adequate.

#a loss of income, or an unexpected but long-lasting drop in income, such that he or she can no longer afford to make the spousal support payments; or,

#an unexpected increase in the payor's child care or child support obligations, such that his or her disposable income has decreased and the spousal support payments cannot be maintained.

===The ''Divorce Act''===

Only the Supreme Court can make or vary orders under the ''Divorce Act'', and the act only applies to people who are or were married to each other. Applications to vary interim orders are brought by filing a court form called a ''Notice of Application'', and the process for making interim applications is described in the ________ page.

===The ''Family Law Act''===

Applications to vary Provincial Court orders are made by filing a court form called a ''Notice of Motion''. Supreme Court orders are varied by filing a ''Notice of Application''. The process for making interim applications is described in the ________ page.

==Changing Final Orders for Spousal Support==

===Changing an Order Refusing Support===

A 2002 case from the Court of Appeal, ''Gill-Sager v. Sager'', called into question just how "final" final orders about spousal support should be. In this case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only ''adjourned'', so that it will always be open to a spouse to apply for spousal support later on even if the spouse wasn't awarded spousal support at trial

===Changing an Order Granting Support===

When a party seeks to vary a final order for spousal support, he or she must show that there has been a ''material change'' in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''T. (T.L.A.) v. T. (W.W.)'', the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''G. (L.) v. B. (G.)'', the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made.

Section 17(4.1) of the ''Divorce Act'' says this on the subject:

Section 167 of the ''Family Law Act'' says this:

====Changing Reviewable Orders for Support====

====Changing Consent Orders for Support====

The test for changing consent orders for spousal support used to be the "material change" test, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of ''Miglin v. Miglin'', the Supreme Court of Canada decided that the material change test shouldn't apply to changing agreements and consent for support and described a three-step test to be used when deciding whether a change is warranted:

==Orders Made Outside of British Columbia==

#the person making the application, the ''Applicant'', applies here for a ''provisional'' order changing the original order;

#the court sends the provisional order to the court that made the original order; and,

===Other Orders===

Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial ''Interjurisdictional Support Orders Act''. Governments that have agreed to follow this process under the ''Interjurisdictional Support Orders Act'' are called ''reciprocating jurisdictions''.

#the Applicant completes a bunch of forms provided by the provincial Reciprocals Office;

#our Reciprocals Office sends the forms to the court that made the original order; and,

==Changing Agreements for Spousal Support==

People can reach an agreement that spousal support will or will not be paid, without having to go to court. Usually a deal on spousal support is worked out in a separation agreement, but marriage agreements and cohabitation agreements can also talk about whether support will be payable when a relationship ends. Family law agreements are discussed in more detail in the _________ chapter.

===Family Law Agreements and Contract Law===

#one of the parties was forced to enter into the agreement;

#one party was too much under the influence or control of the other party in consenting to the terms of the agreement;

#the agreement is fundamentally unfair; or,

#one party lied to the other party or hid information from that party, and these misleading representations were the basis on which the agreement was executed.

===Agreements for Spousal Support and the ''Family Law Act''===

===Amending the Agreement===

#reduce the amount someone must pay as spousal support;

#increase the amount payable as spousal support; or,

#impose a new obligation to pay support.