Making Changes to Spousal Support

From Clicklaw Wikibooks

An orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." for spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. can be changed by another order. An agreement on spousal support can be changed by another agreement or, if the parties can't agree, can be set aside by the court and replaced with an order.

The test the courts use varies depending on whether it is an order or agreement the court is changing, or, in the case of an order, whether it is an interim or final order. Whichever test is used, there must usually be a good reason why a change is necessary.

This section talks about changing interim orders and final orders for spousal support, changing orders that were made in a different jurisdictionWith respect to judges, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution.", and changing agreements for spousal support.

Changing interim orders for spousal support

An interim orderAny order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final order. See "application" and "interim application." is a kind of temporary order that is made after a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. has started but before the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." is finally resolved by a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." or settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer.". Changing an interim order can mean either replacing it with a final order at trial or making another interim order before trial.

The Court of AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "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 reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support." of the merits of a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. for spousal support. As such, the courts often prefer not to change interim orders on an interim basis; rather, they would prefer the parties go straight to trial. In the 1999 case Hama v. Werbes, 1999 CanLII 5828 (BCSC), the Supreme Court said that interim order should only be varied on an interim basis when:

"there is a compelling change in circumstances, such that one or both of the parties would be seriously prejudiced by waiting until trial."

This "compelling change" in circumstances must be serious and of such importance that one or both of the parties will be severely disadvantaged unless the matter is addressed immediately. From the point of view of the spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." receiving support, the recipient, a compelling change in circumstances might be:

  • 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 childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.", such that the spousal support paid is no longer adequate.

From the point of view of the spouse paying support, the payor, a compelling change might be:

  • 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 supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. obligations, such that his or her disposable income has decreased and the spousal support payments cannot be maintained.

The court’s attitude makes perfect sense, from their point of view. Judges would rather make decisions with the most information possible rather than having to make interim arrangements, time after time, on imperfect or incomplete evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony.". But sometimes litigants do not have a choice. Their situation has changed, or the evidence has changed, and they cannot wait for a trial. Their trial is a long way off, or they have not set one yet.

In family law, it is not uncommon for interim orders to go on for quite some time, either because the parties are satisfied with that arrangement, or because they do not think changing it finally merits the trouble or expense of a trial. Judges may prefer trials, but often litigants do not.

Furthermore, sometimes the interim order was made or consented to on the basis that the order would be re-examined once the parties had a chance to gather more information, or try the arrangement and see whether it would work. Making the parties wait for trial when that was never the original intent can seem unduly harsh.

The Family Law Act was amended in 2013 to allow for such cases. By legislationAn act; a statute; a written law made by a government. See "regulations.", it expands the circumstances where an interim variation of an interim order might be allowed. See the provisions in sub-sections 216(3) and (4), below. There are no such corresponding provisions in the Divorce Act, but perhaps judicial attitudes will change even here, given that the other Act has been amended.

If the court agrees and varies the interim order before trial, the new order will also be an interim order and will remain in effect until the issue of spousal support is determined by a final order following trial or a settlement (or until it is varied by another interim order).

The Divorce Act

Interim spousal support can be awarded under s. 15.2(2) of the federal Divorce Act. Section 17(4.1) of the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." allows the court to vary these orders if there has been:

... a change in the condition, means, needs or other circumstances of either former spouse . . . since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

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 ApplicationA legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief.".

The process for making interim applications in Supreme Court is described in the chapter Resolving Problems in Court within the section Interim Applications.

The Family Law Act

Spousal support can be awarded under s. 165 of the provincial Family Law Act. Section 216(1) of the act allows the court to make interim orders for spousal support, and, under s. 216(3) allows the court to vary such orders:

(3) On application by a partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant.", a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists:
(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.
(4) In making an order under subsection (3), the court must take into account all of the following:
(a) the change in circumstances or the evidence, or both, referred to in subsection (3);
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolutionA phrase referring to a family of processes used for resolving legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled;
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Interim orders for spousal support under the Family Law Act can be made and varied by both the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." and the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.". Only the Provincial Court may vary Provincial Court orders and only the Supreme Court may vary Supreme Court orders.

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 chapter Resolving Problems in Court within the section Interim Applications.

Changing final orders for spousal support

A final order for spousal support is an order made following the trial of a court proceeding or made by the agreement of the parties as a settlement of the proceeding. Changing an order is called varying an order.

In general, a final order is just that, final. Without an appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia., a final order represents the end of a court proceeding and cannot be changed. This rule is applied a little less strictly in family law proceedings, and someone who wants to vary a final order for spousal support must be able to show that there has been a serious change in circumstances since the final order was made.

Changing an order refusing support

It used to be the case that a claim for spousal support that was rejected in a final judgmentA judge's decision that finally determines some or all of the claims in a court proceeding, following which there is no other recourse open to a dissatisfied party except an appeal. See "decision." was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for someone in financial need.

A 2003 case from the Court of Appeal, Gill-Sager v. Sager, 2003 BCCA 46, called into question just how "final" final orders about spousal support should be. In this caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." 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

In practice this means that a final order should not say that a claim for support is dismissed but is only adjourned generally. Alternatively, the court can order that the claim for spousal support is dismissed, but with liberty to reapply in the event of a materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." change in circumstances.

Since the Gill-Sager case, it has become a little clearer that a dismissal of spousal support may not be a dismissal once and for all time. Nonetheless, prudent lawyers acting for recipient spouses still prefer the Gill-Sager approach, just to be on the safe side.


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.), 1996 CanLII 1190 (BCCA), 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 CanadaThe highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court." 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:

Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

Section 167 of the Family Law Act says this:

(1) On applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.", a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:
(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;
(b) evidence of a substantial nature that was not available during the previous hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." has become available;
(c) evidence of a lack of financial disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. by either spouse was discovered after the order was made.

Although both the Divorce Act and the Family Law Act agree that a change in the "condition, means, needs or other circumstances" of a spouse is required, the Family Law Act provides two additional factors that would allow the court to change an order, when new evidence or proofEvidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises." of a lack of propertySomething which can be owned. See "chattels" and "real property." disclosure is discovered after the last hearing.

Changing reviewable orders for support

Reviewable orders for spousal support are orders that impose an obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:

"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review by either on or after 1 June 2015."

The main feature about a reviewable order is that the parties do not have to establish a material change in circumstances before the review proceeds. Because of this, however, courts prefer that reviewable orders specify what is to be reviewed, and why. Otherwise, the court has to consider the question entirely afresh, without any baselines or guidance from the first order. This includes whether support should continue at all, or in what amount, or for what period of time.

When the review date for an order for spousal support arrives, the payor's obligation to keep making the support payments does not end. The payor's obligation does not end or reduce until the review is held. If neither party is proceeding with the review, the old order continues to be in effect.

A review of spousal support can be handled through negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute, usually consisting of mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements.", collaborative settlement processesA dispute resolution process in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution.", mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.", arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and which is binding on the parties. See "alternative dispute resolution" and "family law arbitrator.", or in court. If the one of the parties applies to court for the review, the court will hear the matter de novo, a fresh hearing as if the question of spousal support was being determined for the first time. There is no need to establish a change in circumstances at a review hearing.

Changing consent orders for support

A consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make. is an order that the parties agree the court should make. Sometimes, judges review the proposed terms and decide for themselves whether the order is appropriate – such as for divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." orders or orders concerning children. Other times, where the order concerns matters that affect only the two parties consenting – such as property division or spousal support – judges are content to simply endorseIn law, to sign a document or otherwise formally signal one's approval or acceptance of a document, proposal, contract or draft order. whatever the parties have agreed for themselves. In other words, a consent order is a kind of a hybrid, containing elements both of private agreement as well as judicial oversight or decision-making. Sometimes the former is more predominant; sometimes the latter.

As such, there has always been this question. Is the test for changing such an order the usual test for changing court orders generally, or is the appropriate test that which the court applies when making an order to replace an agreement? For a time, the second answerA response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply." appeared to be the correct one. But in a case called L.M.P v L.S. 2011 SCC 64, the Supreme Court of Canada decided that, for cases under the Divorce Act at least, the first approach was the right one: 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?

Orders made outside of British Columbia

It is not always very easy to change an order that was made outside the province because the courts of our province give a great deal of respect to the judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." of the court that made the original order. There are a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat of it.

The process that will apply depends entirely on whether the original order was made under the federal Divorce Act or under the family law legislation of the jurisdiction whose court made the original order.

Divorce Act Orders

Orders that were made elsewhere in Canada under the federal Divorce Act can be changed here under s. 5 of the act, as long as both parties live in British Columbia. Where one party still lives in the province whose courts made the original order, a party living in BC can apply to change the original order using a process described in ss. 18 and 19 of the act:

  1. the person making the application, the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.", applies here for a provisional order changing the original order,
  2. the court sends the provisional order to the court that made the original order, and
  3. on notice to the other party, the original court holds a hearing to confirm the provisional order.

This process requires two hearings: one here in British Columbia for a provisional order, and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may choose to send the order back to BC for more information. Until the provisional order is confirmed, it has no effect and the original order will continue to be the operative order.

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 countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act include: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand and Barbados. The official list of jurisdictions is contained in the Interjurisdictional Support Orders Regulation.

The process under this act is as follows:

  1. the applicant completes a bunch of forms provided by the provincial reciprocals office,
  2. our reciprocals office sends the forms to the court that made the original order, and
  3. on notice of the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order.

Under this process, there is only one hearing, and that hearing is held by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants, and may send the application back to British Columbia for more information. The original order will continue in effect until the court in the reciprocating jurisdiction varies it.

This new process is intended to simplify things, by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and those of the reciprocating jurisdiction. As a result, applications under the Interjurisdictional Support Orders Act can take a long time to process.

Contact details for the British Columbia Reciprocals Office, along with the forms required by the Interjurisdictional Support Orders Act, can be found at www.isoforms.bc.ca.

To vary an order of a country that does not participate in Interjurisdictional Support Orders Act applications, you will have to apply to vary the order in that country.

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 agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements.", 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 Family Law Agreements chapter.

Family law agreements and contract lawThe branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are usually but not always applicable to family law agreements.

Family law agreements are private contracts reached between two people. While family law agreements can be attacked and enforced on the principles of contract law, the support provisions of an agreement can also be argued under the Divorce Act. This is because a couple's private agreement on spousal support doesn't oust the authority of the court to make an order for support under the Divorce Act.

However, the court will usually give considerable weight to family law agreements and will prefer to make an order that reflects the terms of an agreement. Without proof of something like duressForcing someone to do something though psychological or emotional pressure; a defence to the enforcement of a contract. If, for example, a separation agreement was entered into under duress, that may be a ground to dispute or set aside that agreement. or coercionThe use of force or intimidation, whether emotional or physical, to compel another person to do something; interference with another person's freedom of choice to obtain an outcome, action or behaviour., or some other problem, the court will treat the agreement as representing the honest and informed intentions of the parties to settle their dispute.

Because of the importance the court will usually give to an agreement, it can sometimes be necessary to attack the agreement itself under the law that applies to contacts. An agreement might be found to be invalid for one or more of the following reasons:

  • 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.

All of these arguments are based on the law of contracts, not on a particular piece of legislation.

If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under s. 15.2 of the Divorce Act or s. 165 of the Family Law Act. This application will be treated in the same way that all other applications for support are treated.

Agreements for spousal support and the Divorce Act

In the 2003 case of Miglin v. Miglin, 2003 SCC 24, the Supreme Court of Canada decided that the material change test shouldn't apply to changing agreements and described a three-step test to be used when deciding whether a change is warranted:

  • Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
  • If the circumstances that the agreement was entered into were reasonable, the court must consider whether the agreement met the objectives for spousal support set out in s. 15.2 of the Divorce Act at the time it was made.
  • If the agreement did meet the objectives set out in the Divorce Act, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act?

If the court can answer all three questions “yes”, then the agreement survives. But if the answer to any of the three is “no”, then the court may make an order different from the agreement.

Agreements for spousal support and the Family Law Act

The Family Law Act provides some important rules about agreements dealing with spousal support. First, under s. 165(3), the court cannot make an order for spousal support if there is an agreement on spousal support, including an agreement that support not be paid, until the agreement is set aside. Second, under s. 164, two tests are set out to help the court decide when an agreement on spousal support should be set aside.

Under the first test, at s. 164(3), the court must look at the situation of the parties when they were negotiating and executing the agreement. Like in the Miglin case, discussed above, the court is required to consider whether these circumstances existed when the parties were making their agreement:

(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would under the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts. The system of justice used in non-criminal cases in all provinces and territories except Quebec. cause all or part of a contract to be voidable.

The last part of this test, at subsection (d), is about whether there is a defect under the law of contracts that might make the agreement void or voidable. The other parts of the test are all about the fairness of the parties' negotiations.

Now, even if there are no issues with an agreement under s. 164(3), the second test, at s. 164(5), allows the court to set aside agreements that are "significantly unfair" taking into account:

(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d) the degree to which the spouses relied on the terms of the agreement;
(e) the degree to which the agreement meets the objectives set out in section 161.

Section 161, mentioned in subsection (e), is the part of the act that sets out the objectives of spousal support.

If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under s. 165 of the Family Law Act. This application will be treated in the same way that all other applications for support are treated.

Amending the agreement

It may be possible to avoid court altogether if the spouses can agree about the new arrangements and are willing to change the part of the agreement that deals with spousal support. All things considered, this is a much cheaper and much less confrontational way of dealing with the problem. It may well be that the payor is willing to agree to continue or start paying support, or that the recipient is willing to agree to a reduction in the amount of support paid.

Family law agreements are changed by executing another written agreement that updates the original agreement. Changing an agreement is called amending the agreement. The agreements are usually called amending agreements, amendment agreements, addendum agreements or something else to that effect and only deal with the part of the original agreement that needs to be changed. They are much shorter than the agreements that they amendTo change or alter a pleading or document that has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "amended Notice of Family Claim" or the "amended separation agreement.", and the text of the agreement usually says something like this:

Frank and Anne agree that their separation agreement, executed on 1 January 2012, shall be amended by cancelling Paragraph 12 of that agreement and replacing it with the following:
Neither party shall be entitled to receive spousal support from the other.

An amending agreement can also:

  • reduce the amount someone must pay as spousal support,
  • increase the amount payable as spousal support, or
  • impose a new obligation to pay support.


Resources and links

Legislation

Links


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export