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Changing Family Law Orders, Awards and Agreements Involving Spousal Support

2019-05-16T16:19:25Z

David Dundee: /* Retirement */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}An order for spousal support 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 jurisdiction, and changing agreements for spousal support.

==Changing interim orders for spousal support==

An ''interim order'' is a kind of temporary order that is made after a court proceeding has started but before the proceeding is finally resolved by a trial or settlement. 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 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 not to change interim orders on an interim basis; rather, they would prefer the parties go straight to trial. In the 1999 case ''[http://canlii.ca/t/1d1rl Hama v. Werbes]'', 1999 CanLII 5828 (BCSC), the Supreme Court said that interim order should only be varied on an interim basis when:

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

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 spouse 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 themselves 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.

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 they 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 their disposable income has decreased and the spousal support payments cannot be maintained.

The court’s attitude makes perfect sense, from its 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 evidence. 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 legislation, 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 act allows the court to vary these orders if there has been:

<blockquote><tt>... 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.</tt></blockquote>

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''.

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:

<blockquote><tt>(3) On application by a party, 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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in circumstances has occurred since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.</tt></blockquote></blockquote>
<blockquote><tt>(4) In making an order under subsection (3), the court must take into account all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the change in circumstances or the evidence, or both, referred to in subsection (3);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the length of time that has passed since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) would not necessarily reflect the final arrangement between the parties;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether a trial has been scheduled;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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).</tt></blockquote></blockquote>

Interim orders for spousal support under the ''Family Law Act'' can be made and varied by both the Provincial Court and the Supreme Court. 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 appeal, 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 judgment 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, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended only dismissing a claim with liberty to reapply in the event of a material change in circumstances.

Since the Gill-Sager case, the Court of Appeal has now clarified that, indeed, even a bald dismissal of spousal support can be revived if there has been a material change in circumstances: [http://canlii.ca/t/hrwn6 Sandy v Sandy], 2018 BCCA 182. Such cases may be rare, but they can happen – especially, say, if spousal support was dismissed only because the paying spouse could not afford to pay both child and spousal support, and the children are now grown up and no longer in need of child support.

===Changing an order granting support===

When a party seeks to vary a final order for spousal support, they 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 ''[http://canlii.ca/t/1f0dj 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 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:

<blockquote><tt>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.</tt></blockquote>

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

<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote>

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 proof comes to light or improper disclosure is discovered after the last hearing. In other words, you learn that the order was based on incorrect or misleading information.

====Changing reviewable orders for support====

''Reviewable orders'' for spousal support are orders that impose an obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:

<blockquote>"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."</blockquote>

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 negotiation, collaborative settlement processes, mediation, arbitration, 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 order'' 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 divorce 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 endorse 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 answer 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 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:

#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
#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 ''[http://canlii.ca/t/84l3 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 [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

The process under this act is as follows:

#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
#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 [http://www.isoforms.bc.ca 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 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 [[Family Law Agreements]] chapter.

===Family law agreements and contract law===

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 duress or coercion, 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 ''[http://canlii.ca/t/1g5lh 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:

<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote>
<blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote>
<blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote>
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote>

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:

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

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 amend, and the text of the agreement usually says something like this:

<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote>

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.

==Retirement==

Retirement will often constitute a material change in circumstances. For the paying spouse, it usually means less income is available to pay support. For the receiving spouse, it can mean less support is needed to supplement a retirement income. Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event. Under section 17 the ''[[Divorce Act]]'', you can apply to vary if you can show that retirement does in fact represent a material change in circumstances. But applying to vary, or reviewing, is not the same as changing.

The danger lies in just assuming the court will vary spousal support when you retire. Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support. Why would this happen? Well, it depends on a few things:
*First, does the paying spouse have to retire (ie mandatory retirement, or it is medically necessary)? In these circumstances, the court is most likely to grant some relief.
*Second, how would this affect the receiving spouse? Can they also retire? It is one thing if the receiving spouse still has a good job, or also has, or will have retirement income. In either event, perhaps spousal support is no longer necessary or appropriate. Such may be the case where, for example, the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.
*On the other hand, if the receiving spouse is not working or cannot yet retire, or is otherwise still dependent on that spousal support cheque, cutting off support may leave them in trouble, financially. This can happen where, for example, the paying spouse wants to take early retirement. It can even happen where the paying spouse wants to retire at the usual age – 65 – but the receiving spouse is much younger. The paying spouse might have to retire later. The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire also.
*Finally, when the paying spouse retires, will they have other sources of income? Perhaps they have another job lined up, or intend to go into business for themselves. This extra income will certainly affect the calculations.

If a pension has been divided, you should also check the order or agreement that divides it. Sometimes, there are limitations on when the pension holder can take retirement. Early retirement may not be allowed, for example, as it often results in less pension income – for both parties.

Also be wary of orders or agreements that say spousal support may be reviewed on the retirement of the paying spouse. As we say above, reviewing is not the same as changing – and certainly not the same as terminating.

In most cases, if retirement is an issue, the parties will be best advised to negotiate or mediate a solution, or to apply to court, ''before'' they have made any irrevocable changes in their employment.

==Remarriage==

Similarly, there is a common assumption that support ends when the receiving spouse remarries or is living with a new common-law “spouse”. Certainly, this is often the case – but not always. Remarriage or re-partnering is often a material change in circumstances, but that is not the end of the analysis. Especially where, in granting the original order, the court found significant compensatory grounds for entitlement, the support obligation may be reduced, but not cancelled.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]

===Links===

* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}
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Changing Family Law Orders, Awards and Agreements Involving Spousal Support

2019-05-16T16:12:32Z

David Dundee: /* Retirement */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}An order for spousal support 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 jurisdiction, and changing agreements for spousal support.

==Changing interim orders for spousal support==

An ''interim order'' is a kind of temporary order that is made after a court proceeding has started but before the proceeding is finally resolved by a trial or settlement. 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 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 not to change interim orders on an interim basis; rather, they would prefer the parties go straight to trial. In the 1999 case ''[http://canlii.ca/t/1d1rl Hama v. Werbes]'', 1999 CanLII 5828 (BCSC), the Supreme Court said that interim order should only be varied on an interim basis when:

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

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 spouse 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 themselves 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.

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 they 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 their disposable income has decreased and the spousal support payments cannot be maintained.

The court’s attitude makes perfect sense, from its 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 evidence. 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 legislation, 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 act allows the court to vary these orders if there has been:

<blockquote><tt>... 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.</tt></blockquote>

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''.

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:

<blockquote><tt>(3) On application by a party, 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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in circumstances has occurred since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.</tt></blockquote></blockquote>
<blockquote><tt>(4) In making an order under subsection (3), the court must take into account all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the change in circumstances or the evidence, or both, referred to in subsection (3);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the length of time that has passed since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) would not necessarily reflect the final arrangement between the parties;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether a trial has been scheduled;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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).</tt></blockquote></blockquote>

Interim orders for spousal support under the ''Family Law Act'' can be made and varied by both the Provincial Court and the Supreme Court. 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 appeal, 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 judgment 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, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended only dismissing a claim with liberty to reapply in the event of a material change in circumstances.

Since the Gill-Sager case, the Court of Appeal has now clarified that, indeed, even a bald dismissal of spousal support can be revived if there has been a material change in circumstances: [http://canlii.ca/t/hrwn6 Sandy v Sandy], 2018 BCCA 182. Such cases may be rare, but they can happen – especially, say, if spousal support was dismissed only because the paying spouse could not afford to pay both child and spousal support, and the children are now grown up and no longer in need of child support.

===Changing an order granting support===

When a party seeks to vary a final order for spousal support, they 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 ''[http://canlii.ca/t/1f0dj 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 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:

<blockquote><tt>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.</tt></blockquote>

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

<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote>

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 proof comes to light or improper disclosure is discovered after the last hearing. In other words, you learn that the order was based on incorrect or misleading information.

====Changing reviewable orders for support====

''Reviewable orders'' for spousal support are orders that impose an obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:

<blockquote>"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."</blockquote>

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 negotiation, collaborative settlement processes, mediation, arbitration, 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 order'' 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 divorce 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 endorse 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 answer 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 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:

#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
#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 ''[http://canlii.ca/t/84l3 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 [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

The process under this act is as follows:

#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
#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 [http://www.isoforms.bc.ca 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 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 [[Family Law Agreements]] chapter.

===Family law agreements and contract law===

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 duress or coercion, 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 ''[http://canlii.ca/t/1g5lh 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:

<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote>
<blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote>
<blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote>
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote>

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:

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

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 amend, and the text of the agreement usually says something like this:

<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote>

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.

==Retirement==

Retirement will often constitute a material change in circumstances. For the paying spouse, it usually means less income is available to pay support. For the receiving spouse, it can mean less support is needed to supplement a retirement income. Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event. Under section 17 the ''[[Divorce Act]]'', you can apply to vary if you can show that retirement does in fact represent a material change in circumstances. But applying to vary, or reviewing, is not the same as changing.

The danger lies in just assuming the court will vary spousal support when you retire. Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support. Why would this happen? Well, it depends on a few things:
*First, does the paying spouse have to retire (ie mandatory retirement, or it is medically necessary)? In these circumstances, the court is most likely to grant some relief.
*Second, how would this affect the receiving spouse? Can he or she also retire? It is one thing if the receiving spouse still has a good job, or also has, or will have retirement income. Perhaps spousal support is no longer necessary or appropriate. Such may be the case where, for example, the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.
*On the other hand, if the receiving spouse is not working or cannot yet retire, or is otherwise still dependent on that spousal support cheque, cutting off support may leave him or her in trouble, financially. This can happen where, for example, the paying spouse wants to take early retirement. It can even happen where the paying spouse wants to retire at the usual age – 65 – but the receiving spouse is much younger. The paying spouse might have to retire later. The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire him- or herself.
*Finally, when the paying spouse retires, will he or she have other sources of income? Perhaps they have another job lined up, or intend to go into business for themselves. This extra income will certainly affect the calculations.

If a pension has been divided, you should also check the order or agreement that divides it. Sometimes, there are limitations on when the pension holder can take retirement. Early retirement may not be allowed, for example, as it often results in less pension income – for both parties.

Also be wary of orders or agreements that say spousal support may be reviewed on the retirement of the paying spouse. As we say, above, reviewing is not the same as changing – and certainly not the same as terminating.

In most cases, if retirement is an issue, the parties will be best off seeking to negotiate or mediate a solution, or applying to court, before they have made any irrevocable changes in their employment.

==Remarriage==

Similarly, there is a common assumption that support ends when the receiving spouse remarries or is living with a new common-law “spouse”. Certainly, this is often the case – but not always. Remarriage or re-partnering is often a material change in circumstances, but that is not the end of the analysis. Especially where, in granting the original order, the court found significant compensatory grounds for entitlement, the support obligation may be reduced, but not cancelled.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]

===Links===

* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}
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[[Category:JP Boyd on Family Law]]

Changing Family Law Orders, Awards and Agreements Involving Spousal Support

2019-05-16T15:51:50Z

David Dundee: /* Retirement */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}An order for spousal support 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 jurisdiction, and changing agreements for spousal support.

==Changing interim orders for spousal support==

An ''interim order'' is a kind of temporary order that is made after a court proceeding has started but before the proceeding is finally resolved by a trial or settlement. 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 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 not to change interim orders on an interim basis; rather, they would prefer the parties go straight to trial. In the 1999 case ''[http://canlii.ca/t/1d1rl Hama v. Werbes]'', 1999 CanLII 5828 (BCSC), the Supreme Court said that interim order should only be varied on an interim basis when:

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

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 spouse 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 themselves 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.

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 they 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 their disposable income has decreased and the spousal support payments cannot be maintained.

The court’s attitude makes perfect sense, from its 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 evidence. 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 legislation, 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 act allows the court to vary these orders if there has been:

<blockquote><tt>... 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.</tt></blockquote>

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''.

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:

<blockquote><tt>(3) On application by a party, 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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in circumstances has occurred since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.</tt></blockquote></blockquote>
<blockquote><tt>(4) In making an order under subsection (3), the court must take into account all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the change in circumstances or the evidence, or both, referred to in subsection (3);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the length of time that has passed since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) would not necessarily reflect the final arrangement between the parties;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether a trial has been scheduled;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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).</tt></blockquote></blockquote>

Interim orders for spousal support under the ''Family Law Act'' can be made and varied by both the Provincial Court and the Supreme Court. 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 appeal, 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 judgment 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, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended only dismissing a claim with liberty to reapply in the event of a material change in circumstances.

Since the Gill-Sager case, the Court of Appeal has now clarified that, indeed, even a bald dismissal of spousal support can be revived if there has been a material change in circumstances: [http://canlii.ca/t/hrwn6 Sandy v Sandy], 2018 BCCA 182. Such cases may be rare, but they can happen – especially, say, if spousal support was dismissed only because the paying spouse could not afford to pay both child and spousal support, and the children are now grown up and no longer in need of child support.

===Changing an order granting support===

When a party seeks to vary a final order for spousal support, they 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 ''[http://canlii.ca/t/1f0dj 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 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:

<blockquote><tt>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.</tt></blockquote>

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

<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote>

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 proof comes to light or improper disclosure is discovered after the last hearing. In other words, you learn that the order was based on incorrect or misleading information.

====Changing reviewable orders for support====

''Reviewable orders'' for spousal support are orders that impose an obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:

<blockquote>"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."</blockquote>

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 negotiation, collaborative settlement processes, mediation, arbitration, 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 order'' 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 divorce 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 endorse 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 answer 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 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:

#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
#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 ''[http://canlii.ca/t/84l3 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 [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

The process under this act is as follows:

#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
#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 [http://www.isoforms.bc.ca 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 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 [[Family Law Agreements]] chapter.

===Family law agreements and contract law===

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 duress or coercion, 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 ''[http://canlii.ca/t/1g5lh 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:

<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote>
<blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote>
<blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote>
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote>

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:

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

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 amend, and the text of the agreement usually says something like this:

<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote>

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.

==Retirement==

Retirement will often constitute a material change in circumstances. For the paying spouse, it usually means less income is available to pay support. For the receiving spouse, it can mean less support is needed to supplement a retirement income. Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event. Under section 17 the ''[[Divorce Act]]'', you can apply to vary if you can show that it does in fact represent a material change in circumstances.

The danger lies in just assuming the court will vary spousal support when you retire. Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support. Why would this happen? Well, it depends on a few things:
*First, does the paying spouse have to retire (ie mandatory retirement, or it is medically necessary)? In these circumstances, the court is most likely to grant some relief.
*Second, how would this affect the receiving spouse? Can he or she also retire? It is one thing if the receiving spouse still has a good job, or also has, or will have retirement income. Perhaps spousal support is no longer necessary or appropriate. Such may be the case where, for example, the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.
*On the other hand, if the receiving spouse is not working or cannot yet retire, or is otherwise still dependent on that spousal support cheque, cutting off support may leave him or her in trouble, financially. This can happen where, for example, the paying spouse wants to take early retirement. It can even happen where the paying spouse wants to retire at the usual age – 65 – but the receiving spouse is much younger. The paying spouse might have to retire later. The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire him- or herself.

If a pension has been divided, you should also check the order or agreement that divides it. Sometimes, there are limitations on when the pension holder can take retirement. Early retirement often results in less pension income – for both parties.

In most cases, if retirement is an issue, the parties will be best off seeking to negotiate or mediate a solution, or applying to court, before they have made any irrevocable changes in their employment.

==Remarriage==

Similarly, there is a common assumption that support ends when the receiving spouse remarries or is living with a new common-law “spouse”. Certainly, this is often the case – but not always. Remarriage or re-partnering is often a material change in circumstances, but that is not the end of the analysis. Especially where, in granting the original order, the court found significant compensatory grounds for entitlement, the support obligation may be reduced, but not cancelled.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]

===Links===

* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}
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[[Category:JP Boyd on Family Law]]

Basic Principles of Spousal Support

2019-05-15T21:22:44Z

David Dundee: /* Limitation period */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=spousal+support&f=Family+law Spousal Support]
}}Spousal support can be payable, or not payable, because of a family law agreement or because of a court order. When support can't be agreed on, married and formerly married spouses can apply for spousal support under the federal ''[[Divorce Act]]''. Although both married and unmarried spouses can apply for spousal support under the provincial ''[[Family Law Act]]'', there are special rules about how a couple qualify as spouses under that act and special rules about when claims for spousal support can be made.

This section provides an introduction to the basic principles of the law on spousal support, and explores how spousal support is awarded under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''.

It also discusses the basics of calculating the amount of support to be paid when someone is entitled to receive it, and looks at the sort of support orders the court can make, including interim and final orders.

==Introduction==

When analyzing a spousal support claim, the court will consider the following questions:

#Is the person applying as a ''spouse''? That is, do they fit within the category of persons allowed to apply? Or, as it is sometimes put, do they have ''standing'' to apply?
#Is the person applying in time? That is, do they fit within the applicable ''limitation period''?
#Has the person demonstrated an ''entitlement'' to spousal support?
#If all of the above are answered, “yes”, what is the appropriate ''amount'' and ''duration'' of support?

The first two vary depending on which act the person is relying on. The third, entitlement, is common to both the ''Divorce Act'' and the ''Family Law Act''. Generally speaking, entitlement to spousal support is established where:

# a spouse has suffered economic loss or hardship as a result of the relationship or the breakdown of the relationship (called compensatory entitlement),
# there is a contract between the spouse that requires that spousal support be paid (contractual entitlement), or
#a spouse is in financial need after separation and the other spouse has the ability and disposable income to meet that need (needs-based entitlement). Need, in this context, is not limited to the basic necessities, but can mean being unable to maintain the prior married standard of living without assistance.

A person who is claiming spousal support in court will generally wind up making their application based on one of these grounds. In determining whether the ground has been proven, the court will look at the factors and requirements set out in the relevant legislation.

In BC, the amount and duration of support are largely determined with reference to [[The Spousal Support Advisory Guidelines]].

===The ''Divorce Act''===
====Standing and the ''Divorce Act''====
If the claim for spousal support is being made under the federal ''[[Divorce Act]]'', the parties must be or have been married, and the person asking for spousal support must have lived in the province in which the court proceeding is started for at least a year before the proceeding is started in order to have standing.

====Limitation periods and the ''Divorce Act''====
The ''Divorce Act'' doesn't have any rule about when an application for support can be brought following divorce. Under the ''Divorce Act'', a spouse is always a spouse entitled to apply for support. Nonetheless, the court may dismiss a claim based on delay. (If you wait several years, the court may wonder whether you really needed support at all.) So, it is still important to pursue support as soon as reasonably possible.

====Entitlement and the ''Divorce Act''====
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 15.2(6) of the ''[[Divorce Act]]''. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 15.2(4). [[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

====Amount and duration of support====
[[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

===The ''Family Law Act''===
====Standing under the ''FLA''====
If the claim is being made under the provincial ''[[Family Law Act]]'', spousal support is available for married and unmarried spouses. For unmarried spouses, spousal support may be payable, providing that:

#the parties lived in a ''marriage-like relationship'' for a continuous period of at least two years, or
#the parties lived in a marriage-like relationship for less than two years and have a child together.

As to what constitutes a “marriage-like relationship”, the courts take a holistic approach. The presence or absence of any particular factor is not determinative: [http://canlii.ca/t/1txxkand Austin v. Goerz] 2007 BCCA 586 and [http://canlii.ca/t/gm9nx Weber v Leclerc], 2015 BCCA 492. It does not require a blending of finances, monogamy, planning for retirement or death, a decision to have children, or other hallmarks of traditional (whatever that is) marriage. The presence of such factors can help; but their absence may not be fatal. What is essential is that the court can see a committed relationship in some sense sufficient to raise an obligation for support. That may sound circular (and it is), but it is nonetheless the task for a judge where the question is in doubt.

If the parties have a child, and live together with that child in a marriage-like relationship, a plain reading of the statute suggests that not only is two years co-habitation not required, any length of cohabitation will do. So far, at least one case seems to agree: [http://canlii.ca/t/gfdtg J.M. v R.B.], 2014 BCPC 269, at paragraph 90 (discussing the a similar test under section 39).

====Limitation period====
Married spouses must start a court proceeding claiming spousal support within two years of the date of their ''divorce'' or an order ''annulling'' their marriage. Unmarried spouses must start a court proceeding within two years of the date of their ''separation''.

“Separation” does not equate to moving out. Under section 3(4) of the the ''[[Family Law Act]]'', for spouses to be separated there must be:

#communication by one spouse of an intention to separate permanently and
#some action to demonstrate this intention

That could be moving into the guest room, or onto the couch. Spouses can be separated while still living under the same roof. Two years from the date of separation – especially where ``separation`` can be uncertain – is a short period of time. It can take you by surprise and sneak up on you, especially if it `feels` like you are still together, even if desperately unhappy. If there is any doubt whether you have been separated, seek legal advice.

In certain cases, if a former spouse has been led by the other spouse to feel they are still together, or that the other spouse will not take advantage of the limitation period, the other spouse my be prevented (``estopped``) from relying on the limitation period. Such will be the case, for example, where the other spouse makes voluntary support payments: [http://canlii.ca/t/1f3ss Pierce v Pierce], 1997 CanLII 2583. But do not place all your hopes in this basket. If there is talk of separation, better to know your rights than be sorry you didn’t.

The limitation period will also be suspended for so long as the parties engage in ``family dispute resolution with a family dispute resolution professional``. These are defined terms and regrettably do not apply to all efforts to resolve the dispute out of court.

====Entitlement====
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 161 of the ''[[Family Law Act]]''. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 162. The ''[[Family Law Act]]'' objectives and factors for spousal support are the same as the ''[[Divorce Act]]'' objectives and factors

====Amount and duration====
[[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

===June and Ward Cleaver: An explanation of spousal support===

The point of spousal support is to provide assistance to a spouse who is financially dependent on the other spouse, or to a spouse who has been financially disadvantaged as a result of the relationship. Let's use the classic TV show, ''Leave it to Beaver'' as an example.

<blockquote>June and Ward are married and have a very traditional relationship. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.</blockquote>
<blockquote>June, who might well have been a research scientist at NASA before she got married, has chosen to abandon her career to take care of Wally and the Beaver and make sure that Ward has a nice hot dinner waiting when he comes home.</blockquote>
<blockquote>Ward, on the other hand, has been given the opportunity to have a fabulous career. June's labour in the home has freed his time up so that he can go to work and get raises and promotions, without having to worry about getting the Beaver ready for school, preparing meals for the family, or doing the dishes.</blockquote>
<blockquote>Skip forward a few years. Ward discovers that June's relationship with the mail carrier isn't quite as businesslike as he'd thought. Ward and June separate, Wally moves in with his girlfriend and the Beaver stays with June in the former family home. Ward moves into a new apartment with his secretary.</blockquote>
<blockquote>As a result of the way that Ward and June handled their marriage, Ward has been allowed to pursue a successful career and earn lots of money. Ward is in a great position to move on with his life.</blockquote>
<blockquote>June, however, isn't so lucky. Her research skills from her work at NASA are obsolete, her master's degree in orbital dynamics isn't relevant any more, and she has no idea how to operate the fancy new equipment that NASA has bought since she last worked there. Making matters worse, the last entry on her resume is fifteen years old. If June's going to go back to work, it won't be at NASA, it'll be at Tim Hortons.</blockquote>

In this example, June has been financially disadvantaged as a result of the marriage. While Ward is in good shape and his career shows no sign of decline, June has no way to easily re-enter the workforce because her job skills are out-of-date. Of course, they have two great kids, but the best job June will be able to get will be as a Tim Hortons trainee, and that won't pay enough to cover the cost of the mortgage, the gas bill, the phone bill, and all of life's sundry other expenses.

As a result of how Ward and June elected to manage their marriage, Ward will, in all likelihood, have to pay spousal support to June to help her get by and help maintain the house while she upgrades her education and gets some job retraining.

===Spousal support and the division of property===

The issues of spousal support and the division of the family property are somewhat intertwined. Before the ''Family Law Act'', the court had to turn its mind to the question of spousal support after the family property, if any, had been divided between the parties. In other words, the division of property might have been adjusted in such a way as to have a direct effect on the support recipient’s need for support. There may be no need, or the amount of support required may be simply a top up to the order for property division for the objects of spousal support to be met.

Now, the order is reversed. The court considers spousal support first and if, say, the paying spouse did not have the means to pay proper support, the court may adjust property division to redress the balance.

===Spousal support, fault and misconduct===

Divorce in Canada has been ''no-fault'' since the ''[[Divorce Act]]'' was updated in 1968, and the ''Family Relations Act'' followed suit when it was introduced in 1972.

A no-fault system means that the conduct of the spouses during their relationship and the reasons why their relationship has ended have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how property and debt are divided. Whether someone was abusive or a cheater, for example, is not relevant to the court's consideration of these issues. In fact, s. 15.2(5) of the ''[[Divorce Act]]'' says:

<blockquote><tt>In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.</tt></blockquote>

The Supreme Court of Canada, in a 2006 ''[[Divorce Act]]'' case called ''[http://canlii.ca/t/1nmrd Leskun v. Leskun]'', [2006] SCC 25 confirmed that the misconduct of the spouses must not be taken into consideration in making a decision about whether spousal support should be paid following the end of their marriage. But even in ''Leskun'', the court distinguished between ''misconduct itself'' and the ''effects of misconduct'' on the parties after separation:

<blockquote><tt>21.There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the [''Divorce Act''] however, is to focus on the consequences of the spousal misconduct not the attribution of fault.</tt></blockquote>

The ''[[Family Law Act]]'' takes a slightly different approach. Section 166 says this:

<blockquote><tt>In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably</tt></blockquote>
<blockquote><blockquote><tt>(a) causes, prolongs or aggravates the need for spousal support, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) affects the ability to provide spousal support.</tt></blockquote></blockquote>

In other words, under the ''Family Law Act'', the court cannot consider misconduct generally (the same as under the ''Divorce Act''), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the payor is being undermined in their ability to pay support.

===Securing a spousal support obligation===

Under s. 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,
*require a payor with life insurance to maintain that policy and specify that a spouse will be the beneficiary or the policy, or
*order that spousal support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires spousal support to be paid from the payor's estate, under s. 171(1), the court must consider:

*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate,
*whether any other means exist to meet the recipient's needs.

===Spousal support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

==The objectives and factors of spousal support==

Under s. 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the ''objectives'' set out in s. 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the ''factors'' set out in s. 162.

Section 15.2(6) of the ''[[Divorce Act]]'' and s. 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order:

<blockquote><tt>(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;</tt></blockquote>
<blockquote><tt>(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;</tt></blockquote>
<blockquote><tt>(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; and</tt></blockquote>
<blockquote><tt>(d) as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.</tt></blockquote>

The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment.

The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make their best efforts to become self-sufficient at some point following separation. A spousal relationship is not intended to be a lifelong meal ticket; at some point, a dependant spouse must usually become independent.

These sections of the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows them to meet their daily needs.

While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents them from becoming independent, there will likely be an end date to support payments.

Section 15.2(4) of the ''[[Divorce Act]]'' and s. 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order

<blockquote><tt>(a) the length of time the spouses cohabited;</tt></blockquote>
<blockquote><tt>(b) the functions performed by each spouse during the period they lived together; and</tt></blockquote>
<blockquote><tt>(c) an agreement between the spouses, or an order, relating to support of either spouse.</tt></blockquote>

These factors help the court decide how much spousal support should be paid and for how long, but the court will consider facts about the spouses, their relationship and their circumstances in addition to these.

===Spousal support and child support===

Section 15.3 of the ''[[Divorce Act]]'' and s. 173 of the ''[[Family Law Act]]'' state that child support must take priority over an order for spousal support. When the payor cannot pay both spousal support and child support, the court is required to make an order for child support at the expense of an order for spousal support. Children come first.

===Statutory provisions===

These are the primary sections of the ''[[Divorce Act]]'' dealing with spousal support:

*s. 2: definitions
*s. 4: jurisdiction to make spousal support orders
*s. 5: jurisdiction to change orders
*s. 15: definition of ''spouse''
*s. 15.2: spousal support orders
*s. 15.3: child support has priority over spousal support
*s. 17: varying support orders

These are the primary sections of the ''[[Family Law Act]]'' dealing with spousal support:

*s. 1: definitions
*s. 3: spouses and relationships between spouses
*s. 146: more definitions
*s. 161: objectives of spousal support
*s. 162: factors to determine the amount and duration of spousal support
*s. 163: agreements about spousal support
*s. 164: setting aside agreements about spousal support
*s. 166: misconduct
*s. 167: varying spousal support orders
*s. 168: review of spousal support
*s. 170: things that may be included in support orders
*s. 171: support obligations after death (of payor)
*s. 172 and 173: spousal support and child support
*s. 174: cancellation or reduction of arrears
*s. 198: time limits

==Calculating spousal support==

Once it is decided that a person is entitled to spousal support, the amount of spousal support has to be calculated. It is difficult to predict exactly how much spousal support will be paid in any given case. Many different factors can influence the amount spousal support. However, in British Columbia the [[Spousal Support Advisory Guidelines]] are frequently used by the courts to determine the amount of spousal support and so the Guidelines are a good starting point.

You can visit DIVORCEmate’s website for their free spousal support calculator, [http://mysupportcalculator.ca mysupportcalculator.ca]. This calculator is very good for simple situations, but if there is anything complicated about your circumstances you may want to meet with a lawyer who has bought DIVORCEmate’s expensive commercial software. The lawyer should be able to give you some fairly fine-tuned numbers. This chapter’s section on the [[Spousal Support Advisory Guidelines]] discusses the Advisory Guidelines formulas in a lot more detail.

In addition to considering the Spousal Support Advisory Guidelines, it is important that each party prepare a sworn financial statement whether a court proceeding has been started or not. In provincial court, the Financial Statement is called a [[PCFR Form 4 Financial Statement|Form 4]] and in Supreme Court, the Financial Statement is called a [[Form F8 Financial Statement|Form F8]]. The financial statement sets out each party’s income and assets, expenses and liabilities.

When a spousal support calculation is done by the Spousal Support Advisory Guidelines, the calculation sets out three amounts of possible spousal support: a low amount, a mid amount and a high amount ([http://mysupportcalculator.ca/ mysupportcalculator.ca] only provides the high and low amounts, not the mid amount of the range). There can be hundreds of dollars difference between the low and high amounts of spousal support. The expenses of the parties that are set out in their financial statements can help decide whether spousal support should be at the low amount, the mid amount, the high amount or even outside of the amounts suggested by the Spousal Support Advisory Guidelines entirely.

Ideally, a spousal support payment will leave both parties (not just the party who earns more money) with enough to look after their living expenses. The court will not bankrupt a payor in order to meet the dependent spouse’s needs. In many cases, this mean that both parties must adjust their standard of living to be able to live within the pool of income available to them. The parties’ expenses on their financial statement can help show how much money each party needs to meet their living expenses and how much money the payor has left over to pay spousal support after their
reasonable monthly living expenses for things like rent, utilities, groceries and so forth are met.

==Orders and agreements on spousal support==

Spousal support is a very grey area of the law, with few hard and fast rules. As a result, every order or agreement dealing with spousal support will be tailored to the particular circumstances of the parties, even orders and agreements that say that no spousal support will be paid.

===Interim orders and agreements===

''Interim orders'' are temporary orders made once a court proceeding has started. Interim orders are not meant to be permanent. They last until another interim order is made or the proceeding wraps up with a trial or a settlement. Likewise, ''interim agreements'' are agreements made when settlement discussions have started, and they are meant to last only until a final agreement is negotiated.

The court will think about the same things when it hears an application for an interim spousal support order as it does at the hearing for a final order. At least, that's the general rule. In reality, however, the court usually takes a pretty rough and ready approach to interim applications based on something called the ''means and needs'' test. This test asks:

*Does the person making the application, the ''applicant'', have a need for support?
*Does the other person, the ''respondent'', have the means to pay it?

The court will not usually attempt to decide whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In a case called ''[http://canlii.ca/t/1mtw3 L.C.M. v. M.A.C.M.]'', 2005 BCSC 1786 (a 2005 decision of our Supreme Court), the judge said that interim spousal support should only be awarded where an obvious case for entitlement is made out.

Spousal support will often be awarded on an interim basis where:

*there are young children who need a stay-at-home caregiver,
*the applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years,
*the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills, or
*the applicant is employed but is unable to pay the household bills without help.

Of course, ''need'' alone isn't enough, and the person against whom the application is brought must have the ability to actually ''pay'' support. Whether the payor has the means to pay support is usually figured out by looking at the payor's monthly income, less any child support obligations, less their reasonable monthly expenses. If there is money left over, (''disposable income''), some or all of that money is available to be paid as spousal support.

Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes enough to help the applicant enjoy more or less the same standard of living that they enjoyed before the parties separated.

===Final orders and agreements: periodic payments===

Under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'', a court may make an order for spousal support for regular payments, called ''periodic payments'', to run for a fixed period of time (a ''definite'' term), or to run without a particular end date (an ''indefinite'' term). Whether an order requires that spousal support be paid for a definite or indefinite term will depend on the particular circumstances of each case. In general, however, the longer the relationship was and the older the parties are, the more likely it is that the court will make an indefinite order for spousal support.

====Indefinite obligations====

Indefinite orders for spousal support are often made where one or more of the following circumstances exist:

*the parties' relationship was lengthy,
*the recipient is unable to re-enter the work force because of physical or mental health issues,
*the recipient is elderly and unable or likely unable to re-enter the workforce,
*the recipient's child care or other obligations make it impossible for them re-enter the workforce, or
*the consequences of the breakdown of the relationship, including mental health issues such as depression, have left the recipient unable to work.

An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are that:

*if the recipient remarries,
*if the recipient lives with another person in a marriage-like relationship for longer than a certain amount of time,
*if the recipient obtains employment and earns more than a specified amount,
*if the payor retires, or
*if the recipient or the payor dies.

====Reviewable orders and agreements====

Under s. 168 of the ''[[Family Law Act]]'', an order or agreement that requires the payment of spousal support can be ''reviewable''.

A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a ''review date''. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as:

*the children leaving home,
*the recipient recovering from an illness,
*the recipient becoming employed or finishing a course of training or education,
*the recipient or the payor reaching a certain age or retiring,
*the recipient or the payor beginning to receive pension benefits,
*the sale of a property, or
*the recipient entering into a new spousal relationship.

When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation usually continues until the review finally takes place, whether the review is started by the recipient or the payor.

At the review, either spouse may seek to cancel or extend the support obligation, or to reduce or increase the amount of spousal support paid. The review will usually be based on parties' financial circumstances at the time of the review, but can take into account other factors, like the recipient's health or the recipient's efforts to find employment. A reviewable order or agreement can specify how the review will be conducted, which might be by mediation, a collaborative settlement process, or arbitration. Reviews don't have to happen in court.

====Definite-term obligations====

Orders or agreements that provide that spousal support is to be paid for a specific period of time are usually made when it is clear that a dependant person has the ability to become self-sufficient within a fairly short amount of time or a payor's resources are plainly limited.

Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship:

*the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs,
*the recipient has relevant job training or skills at the time that the relationship breaks down and is expected to return to work in short order,
*the recipient had a successful career before or during the relationship and is expected to return to work in short order,
*the recipient merely requires some time to adjust to their new living circumstances and will become self-sufficient relatively quickly, or
*the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force.

The length of time for which support must be paid usually reflects one or more of the following factors:

*the length of the parties' relationship,
*the extent and nature of the parties' employment during their relationship,
*the time the court estimates it will take the recipient to complete job training, if unemployed,
*the amount of the recipient's income, if employed,
*the payor's retirement date,
*the recipient's anticipated length of recovery from an illness, or
*the age at which the children will enter school or the age at which they can enter daycare.

===Final orders and agreements: lump-sum payments===

A ''lump sum'' order or agreement for spousal support requires the payor to make a large, one-time-only payment of spousal support. This kind of spousal support payment is fairly rare, partly because the payment of a lump sum of spousal support is often difficult to distinguish from the division of property, partly because a lump-sum payment may not adequately address the need the payment of spousal support is meant to address, and partly because few payors can afford to make a lump-sum payment.

Whether the court is dealing with an application for lump-sum spousal support rather than the more usual periodic-payment support obligation, the court will usually be concerned that the payment of spousal support isn't going to act as a substitute for the division of family property. The court will also be concerned that a lump-sum payment may not actually help the recipient become financially independent.

Payors are sometimes interested in lump-sum spousal support payments for the reason that the single payment will allow them to wash their hair of the other party and have done with it immediately, rather than having to deal with the other party on an ongoing basis. Recipients are usually interested in lump-sum spousal support payments where the cash is needed to make a down payment or some other payment that will contribute to their future security.

The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where:

*the payor has a history of failing to make periodic support payments,
*the payor has been dishonest or deceitful during the trial, particularly with respect to the extent of their finances,
*there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments,
*the money is necessary to provide a home for the recipient,
*the money is necessary to give the recipient financial security that cannot be had by periodic payments,
*the payor is financially well-off and can afford to make the payment,
*the payor is able to pay a lump sum and the likelihood of the payor being able to make future periodic payments of support is low,
*the money will promote the recipient's self-sufficiency, or
*periodic payments will not encourage the recipient to become self-sufficient.

Lump-sum awards are available on interim applications, but such awards are unusual. A lump-sum payment may be ordered if it is clear that:
*the payment will provide immediate relief for the recipient
*ongoing monthly payments will not be necessary and,
*the payor has the ability to make the payment.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Documents===
* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Links===

* [http://mysupportcalculator.ca Free Basic Spousal Support Calculator from DIVORCEmate]
* [http://childview.ca/ ChildView Spousal Support Calculator Software]
* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice: About spousal support]
* [http://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law Website: Spousal support]
* [http://clicklaw.bc.ca/resource/1239 Canadian Bar Association BC Branch: Script on spousal support]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}

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[[Category:JP Boyd on Family Law]]

The Spousal Support Advisory Guidelines

2019-05-15T17:06:38Z

David Dundee: /* An introduction to the Spousal Support Advisory Guidelines */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{DOJbadge
| resourcetype = a detailed user's guide to
| link = the [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/ Advisory Guidelines]
}}The ''[http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]'' is an academic paper released by the federal Department of Justice in July 2008. It is not a law and is not expected to become a law.

When someone is entitled to receive spousal support, the Advisory Guidelines describes several different formulas that can be used to calculate how much support should be paid and the length of time it should be paid for.

While no one is required to use the Advisory Guidelines, lawyers and the courts routinely use them in making decisions about spousal support.

This section provides an introduction to the Spousal Support Advisory Guidelines. It discusses what the courts have had to say about the Advisory Guidelines and describes how its formulas work, how they can be restructured for fairness, and what exceptions exist to the formulas.

==An introduction to the Spousal Support Advisory Guidelines==

In 2001, the federal Department of Justice struck an advisory working group to look into the feasibility of uniform guidelines for the calculation of spousal support. The group was composed of judges, family law lawyers, law school faculty members, and social workers. The group was led by Professors Carol Rogerson and Rollie Thompson, both gifted and highly qualified academics with strong backgrounds in family law.

In January 2005, Professors Rogerson and Thompson released their first paper, ''Spousal Support Advisory Guidelines: A Draft Proposal'', for public comment and feedback. After touring the country speaking to judges, lawyers and academics, and monitoring the case law on the draft Advisory Guidelines as it developed over several years, Rogerson and Thompson released their final paper, ''Spousal Support Advisory Guidelines'', in July 2008. This was supplemented by the [https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/index.html Revised Users Guide] in 2016

===The legal status of the advisory guidelines===

The Advisory Guidelines is not a law, and people involved in family law disputes are not bound by it. As of July 2008, the Department of Justice said that it had no plans to turn the Advisory Guidelines into a law and didn't intend to do so. I've heard nothing to suggest a contrary intention since.

===The Advisory Guidelines in a nutshell===

The Spousal Support Advisory Guidelines is an attempt to capture how the majority of Canadian court decisions on spousal support have determined how much support should be paid, and how long support should be paid for, in mathematical formulas. It is not intended to change the law on spousal support, rather it is intended to normalize future decisions about spousal support based upon how the general majority of past court decisions have dealt with the issue.

====Influence of existing law====

The Advisory Guidelines attempts to reflect current practice under the existing law. The Advisory Guidelines is not based on any particular theory of spousal support; it is an independent attempt to reflect the results currently found in the case law on the subject.

====Income sharing====

The essential concept underlying the Advisory Guidelines is the calculation of support based on the total disposable income available to both parties, rather than looking at each party's needs and means separately. The formulas work with the total amount of money collectively available to a couple.

Income sharing does not mean an equal division of income, however, and the ranges the Advisory Guidelines proposes when child support is paid is between 40% and 46% of the total disposable income available to both parties. When no child support is paid, the Advisory Guidelines gives the recipient a share of the difference between the recipient's income and the payor's income, which increases with the length of the relationship.

====Entitlement to support====

The Advisory Guidelines does not deal with whether a spouse is entitled to receive support. Entitlement is, of course, the first question to be decided when dealing with an application for spousal support. The Advisory Guidelines will only be used when a spouse is found to be entitled to spousal support.

====Amount of support====

When no child support is paid, the length of the marriage is central in determining both the amount of support payable and the duration for which support must be paid: the longer the relationship, the more support is paid for longer. The parties' gross incomes are used to determine spousal support.

Where child support is paid, the amount of support payable will be calculated taking into consideration the payment of child support and the different tax rules relating to spousal support and child support. The parties' net incomes are used to determine spousal support.

====Duration of support====

In many cases, the Advisory Guidelines sets out a range of years that support will be paid for. In certain cases, such as long marriages, where the dependant spouse is older or when child support is paid, support will be paid for an indefinite period of time.

The key factors in determining the length of time for which support will paid are the length of the marriage plus any period of time the parties lived together before marriage, the age of the recipient of support and the age of the youngest child.

====Upper and lower income limits====

The Advisory Guidelines has both floors and ceilings: where a payor's income is below $20,000, no spousal support will be payable; and, where a payor's income exceeds $350,000, the payor should pay at the amount for incomes of $350,000. The payor's income above that ceiling will be taken into account at the discretion of the court. Although, in a recent case our Court of Appeal warned that the court would still have to be given reasons to depart from the Guidelines ranges, even when the payor’s income is substantially above the $350,000 ceiling: ''Hathaway v Hathaway'' 2014 BCCA 310.

====Exceptions to the formulas and restructuring the results====

To every rule there is an exception, and the Advisory Guidelines is no different. The ranges the Advisory Guidelines formulas produce aren't carved in stone. Factors such as advanced age, illness, debt load and so forth may suggest that the results for amount, duration, or both should be ignored.

The Advisory Guidelines also allows for the restructuring of a support award to pay more for a shorter time, to pay less for a longer time, or to pay it all up front in one lump sum. Restructuring keeps the total amount paid within the results generated by the Advisory Guidelines formulas.

====Unmarried spouses====

The Advisory Guidelines is written for married or formerly married spouses, because the federal government only has the authority to make rules about spousal support for married couples. The Advisory Guidelines is therefore based on the factors and tests set out in the ''[[Divorce Act]]'' rather than those set out in the different provincial laws about family breakdown and spousal support.

That said, the Advisory Guidelines works just as well to decide spousal support for married spouses and unmarried spouses since the law that applies to determine spousal support for unmarried spouses in British Columbia, the ''[[Family Law Act]]'', works in exactly the same way as the ''Divorce Act''.

===The author's view===

The Advisory Guidelines has melded seamlessly into family law practice in this province and is routinely used to determine spousal support, whether in the course of litigation, arbitration, mediation, or negotiation. Professor Thompson was exactly correct when he predicted that lawyers and the courts would come to rely on the Advisory Guidelines by custom. Frankly, the Advisory Guidelines offers a seductively easy solution to a difficult problem.

My views on the Advisory Guidelines have mellowed with time, and while many of my basic concerns remain, they have assumed a lesser significance. Arbitrariness is good, I have concluded. After all, the Child Support Guidelines are essentially arbitrary and so are many other principles of family law. Take the shared custody exception for the calculation of child support. Why 40%? Why not 38.5 or 41.3%? The answer to that question is, I think, "why not?" There has to be a tipping point somewhere, and exactly where on the scale that tipping point lies is immaterial as long as it has is some rational, defensible foundation.

The point of the arbitrariness of the Child Support Guidelines is to reduce conflict by setting out a fixed sum that must be paid depending on nothing more than the payor's income and the number of children. The same principle applies to the Spousal Support Advisory Guidelines, although the formulas are a lot more complicated. If an arbitrary set of numbers reduces conflict and saves money, I'm all for it, as long as those arbitrary numbers have a certain fundamental reasonableness to them.

===DivorceMate's spousal support calculator===

Until fairly recently, my enthusiasm for the Advisory Guidelines was primarily tempered by the absence of public, free spousal support calculators. This seemed to me to be an appropriate function of government, particularly as it was government that funded the Advisory Guidelines project, however the Department of Justice had no enthusiasm for the project. Making things worse, the two main manufacturers of spousal support software, DivorceMate and ChildView, would not sell their product to people who weren't employed in the justice system in some capacity.

This all changed in April 2011 when DivorceMate stepped up to the plate with a free public website, [http://mysupportcalculator.ca mysupportcalculator.ca]. The website performs child support calculations under the Child Support Guidelines and spousal support calculations under the Advisory Guidelines. The results of the spousal support calculations do not precisely match the results produced by their bells-and-whistles product for professionals and do not account for all of the factors that can impact on the results (such as source of income, tax benefits, deductions and credits, payments to special expenses, and so forth). However, the results will be fine for most people most of the time. DivorceMate deserves much credit for making this resource available, and I thank them for it, whether the resource is a revenue-generating advertising platform or not.

==The views of the courts==

On 4 July 2005, the British Columbia Supreme Court released its first judgment considering the Advisory Guidelines, in the case of ''[http://canlii.ca/t/1l3x1 W. v. W]'', 2005 BCSC 1010. The judge said that the Advisory Guidelines "provide a cross check against the assessment made under existing law", and that the formulas provided in the Advisory Guidelines are "consistent with the law in British Columbia". She then made an order for spousal support using the Advisory Guidelines as a check, without expressly applying the Advisory Guidelines to determine the issue. The Advisory Guidelines, she held, is not law, and is not intended to become law.

On 19 July 2005, the court released its second judgment on the Advisory Guidelines, ''[http://canlii.ca/t/1l2x7 M.S. v. W.S.]'', 2005 BCSC 939. In this case, the judge held, rather emphatically, that the court is not bound by the Advisory Guidelines in determining spousal support and that "equitable distribution can be achieved in a variety of ways and need not be calculated according to a strict formula."

This view was softened later in 2005 by the Court of Appeal in the case of ''[http://canlii.ca/t/1lb8m Yemchuk v. Yemchuk]'', 2005 BCCA 406. In this case, the court held that the Advisory Guidelines reflects the general results seen in the case law on spousal support. While the court stopped well short of saying that the Advisory Guidelines must be used to determine spousal support, it did consider the Advisory Guidelines a useful tool and a factor to be considered in making an order for spousal support, and made an order for support that was within a hair's breadth of the numbers the Advisory Guidelines formulas produced.

===The state of the law in British Columbia===

As a result of ''Yemchuk'', the law in British Columbia was that the Advisory Guidelines is a factor to be taken into account in fixing the amount and duration of an order for spousal support, but that it is no more than a factor. This changed with ''[http://canlii.ca/t/1nwzz Redpath v. Redpath]'', 2006 BCCA 338, a 2006 decision of the Court of Appeal, in which the court held that it is an appealable error for a judge to fail to consider the results produced by the Advisory Guidelines. This moves things well beyond ''Yemchuk'', as now a trial judge ''must'' consider the Advisory Guidelines formula results in making a decision on spousal support. In 2010 the Court of Appeal went even further in ''[http://canlii.ca/t/2d35m Domirti v. Domirti]'', 2010 BCCA 472, ruling that an award of spousal support that falls substantially outside the Advisory Guidelines ranges may be an appealable error.

The law in British Columbia, then, is that the results of the Advisory Guidelines calculations must be considered when making a decision on spousal support. The Advisory Guidelines is, in other words, all but mandatory in this province.

Of course, this also means that lawyers must become proficient in using the Advisory Guidelines formulas or they risk giving their clients and the courts incorrect information. The Without Child Support calculations, discussed later, are not terribly complex, but the With Child Support calculations demand a basic knowledge of the federal and provincial benefits and credits relating to children, the different deductions that apply to employment and self-employment income, received versus taxable dividends, and a few other wrinkles relating to the calculation of after-tax income. Owning the software required to do the Advisory Guidelines calculations isn't enough. Lawyers need to know how to expertly use that software, with tax and income issues in mind, and the software has to do the math and actually perform those calculations correctly.

===The law in other provinces===

Many courts in Canada's other provinces and territories have talked about the Advisory Guidelines in much the same way as our courts have, although with varying degrees of enthusiasm. Alberta has led the charge against the Advisory Guidelines and is the province in which it is least likely to be used to determine a spousal support obligation.

Here is a sampling of judicial comment on the Advisory Guidelines.

''[http://canlii.ca/t/1llxc Woodall v. Woodall]'', 2005 ONCJ 253, Ontario Court of Justice, 2005:

<blockquote>"Although the Spousal Support Advisory Guidelines may be of some assistance to the court on an initial application for spousal support, it must be noted that they are advisory only and are not binding on the court. More importantly, the authors of the guidelines make it very clear in the Executive Summary ... that the advisory guidelines do not deal with the effect of a prior agreement on spousal support and that this issue, like entitlement, is outside the scope of the advisory guidelines and would continue to be dealt with under the evolving law guided by the Supreme Court of Canada's recent decision in ''Miglin v. Miglin''."</blockquote>

''[http://canlii.ca/t/1mjwb Puddifant v. Fraser]'', 2005 NSSC 340, Nova Scotia Supreme Court, 2005:

<blockquote>"Counsel urged the court to consider the Spousal Support Advisory Guidelines. These are not law."</blockquote>

''[http://canlii.ca/t/1pvph Modry v. Modry]'', 2005 ABQB 262, Alberta Court of Queen's Bench, 2005:

<blockquote>"These Guidelines are not mandatory and are only a suggestion. There has been very little judicial analysis of the Guidelines as they are new."</blockquote>
<blockquote>"I suggest that courts will likely use these Guidelines as a bench mark to see what the support amount would be if the Guidelines were applies. Thus it will serve as another method of calculation, which when coincidentally echoing judicial discretion, will become referenced with approval. In other cases where the courts are either astonished by the payment proposition, that is that the math creates a number that is perceived to be too high or inadequate, the courts will shy away from its application."</blockquote>

And, finally, my personal favourite for the judge's powerful and florid language, ''[http://canlii.ca/t/1pvt2 V.S. v. A.K.]'', 2005 ABQB 754, Alberta Court of Queen's Bench, 2005:

<blockquote>"The provisions of the ''Divorce Act'' as interpreted by the Supreme Court of Canada are the law in this country with respect to spousal support. The Spousal Support Advisory Guidelines are the work of two university professors, Carol Rogerson and Rollie Thompson, assisted by a small committee. Those with strong views to the contrary were not involved, nor was there widespread discussion of the guidelines prior to their publication. They have not been enacted by the Parliament of Canada or any Provincial Legislature nor are they the subject of any governmental regulation.</blockquote>
<blockquote>"The Guidelines are a cause for concern. There is no doubt that they are useful for a judge who does not wish to make a thorough and careful analysis of each case and wants a quick answer. However, it is not the role of judges to opt out for an easy answer. Rather judges are bound by the ''Divorce Act'' and the case law which require judges to do individual justice in each case and not look for a 'cookie cutter' answer.</blockquote>
<blockquote>"As well, the Guidelines are stated to be experimental. It is not the function of courts to experiment on the citizens of this country.</blockquote>
<blockquote>"The authors of the Guidelines state that the Guidelines do not change the law. However, in my view, they attempt to do so. For example, they advocate income sharing which has rarely been accepted in this country except for exceptionally long term marriages. It will not be long before someone will argue that disparity in income equals entitlement. As indicated by Chouinard, J. in ''Messier v. Delage'', a person does not acquire a lifetime pension as a result of marriage. Likewise, marriage is not an insurance policy.
The Guidelines also ignore the distribution of matrimonial property which the Supreme Court of Canada in ''Boston v. Boston'', said was relevant. They ignore the goal of self-sufficiency as set out in the ''Divorce Act''. Also they fail to take into account the growing trend, at least in Alberta, towards shared parenting.</blockquote>
<blockquote>"The Guidelines purport not to deal with entitlement. Under the ''Divorce Act'' there are degrees of entitlement based on a multitude of factors. However, the ranges set out in the Guidelines are not sufficient to cover the many possible degrees of entitlement.</blockquote>
<blockquote>"The Guidelines set an arbitrary and presumptive range for both amount and duration. The onus is reversed requiring the payor to justify an exception to the Guidelines. The presumptive nature of the Guidelines does away with a claim based on evidence.</blockquote>
<blockquote>"The stated purpose of the Guidelines is to bring more certainty and predictability to the determination of spousal support. As a result individual justice is sacrificed for consistency. Every case is different on its facts. There are often many variables. Flexibility and discretion are needed for individual circumstances.</blockquote>
<blockquote>"Judges should exercise extreme caution in using the Guidelines. The ''Divorce Act'' and the decisions of the Supreme Court of Canada call on judges to undertake a thorough analysis in each case. Not to do so is to disregard the views of the highest court in this country and to make a mockery of stare decisis."</blockquote>

However, despite these differences in judicial attitude elsewhere, until or unless the Supreme Court of Canada rules otherwise, BC remains a pro-Guidelines jurisdiction.

==The formulas==

The Advisory Guidelines describes two basic formulas:
* One formula for when child support is not being paid (the ''Without Child Support Formula''), as might be the case if the couple have no children or if all of the children are adults and financially independent at the time of separation.
* Another formula for when there is a legal obligation to pay child support (the ''With Child Support Formula''), whether child support is actually being paid or not.

The main With Child Support Formula is designed for situations where the person receiving spousal support is also the person receiving child support. Since this isn't always the case and the amount of child support that's being paid isn't always the amount required by the Child Support Guidelines, the Advisory Guidelines has a few variations of the With Child Support Formula that will apply:

*when custody of the children is shared (when the parents have the children for an equal or near-equal amount of time),
*when custody of the children is split (when each parent has the primary residence of one or more children),
*when the person receiving spousal support is the person paying child support, and
*when all of the children for whom support is being paid are older than the age of majority.

===The ''Without Child Support'' formula===

The Without Child Support Formula is fairly straightforward:

<blockquote>The ''amount'' of support is 1.5 to 2 percent of the difference between the parties' gross incomes for each year of marriage.</blockquote>
<blockquote><blockquote>For example, say a relationship is 10 years long, and Party A has a gross income of $50,000 and Party B has an income of $20,000. The difference between the parties' incomes is $30,000. Party B would have share in the difference of 15 to 20 percent (1.5 times 10 and 2 times 10), or between $4,500 and $6,000 per year. On a monthly basis, support would be paid at $375 to $500.</blockquote></blockquote>

<blockquote>''The length of time'' support will be paid is 0.5 to 1 year for each year of the relationship. If a couple have been together for more than 20 years, or if the age of the dependant party plus the number of years of the relationship equals 65, support will be paid indefinitely.</blockquote>

<blockquote><blockquote>Using the same example, support would be payable for 5 to 10 years (0.5 times 10 and 1 times 10). If, however, the dependent party was 55 at the time of separation, support would be paid indefinitely (55 years of age plus 10 years equals 65).</blockquote></blockquote>

The maximum amount payable under this formula ranges from 37.5% of the difference between the parties' gross incomes to 50% of the difference between the parties' incomes, net of taxes and benefits.

The maximum time spousal support can be payable under this formula ranges from an amount of time equal to the duration of the parties' cohabiting relationship to an indefinite amount of time.

The factors this formula uses are:

*the payor's gross income,
*the recipient's gross income,
*the length of time the parties lived together, and
*the recipient's age.

===The main ''With Child Support'' formula===

This formula is a lot more complex. In this formula, child support is taken out of the payor's gross income and the recipient's income, taxes are taken into account, and government benefits are added to the recipient's income. The reason why child support is deducted from the recipient's income is to reflect the costs that parents bears in raising the children.

<blockquote>The ''amount'' of support is 40 to 46% of the payor's individual net disposable income plus the recipient's net disposable income.</blockquote>
<blockquote>The ''payor's net disposable income'' is their gross income, minus taxes and minus their child support obligation, including the tax credits they receive as a result of paying spousal support.</blockquote>
<blockquote>The ''recipient's net disposable income'' is their gross income, minus taxes and minus their notional child support obligation, plus any government benefits they receive, less the taxes payable as a result of receiving spousal support.</blockquote>

<blockquote><blockquote>Say the parties have an 8 year old child, the payor has a gross income of $50,000 and the recipient has an income of $20,000. The payor's net disposable income is $26,710 ($50,000 minus taxes of $15,570, minus annual child support of $5,112, minus EI deductions of $772, minus CPP deductions of $1,831). The recipient's net disposable income is $15,045 ($20,000 minus taxes of $4,410, minus notional child support of $2,052, minus EI deductions of $396, minus CPP deductions of $816, plus child tax benefit of $1,208, plus national child benefit of $1,511).</blockquote></blockquote>

<blockquote><blockquote>The family's net disposable income is $41,755 ($26,710 plus $15,045). 40 percent of the net disposable income is $16,702; 46 percent of the income is $19,207. After deducting the recipient's net disposable income, the difference between the recipient's income and 40 percent of the family's disposable income is $1,657 per year, and $4,162 for 46 percent.''</blockquote></blockquote>

<blockquote><blockquote>On a monthly basis, spousal support would be between $138 and $346. The total the payor would pay each month would be spousal support plus $426 in child support.</blockquote></blockquote>
<blockquote>The ''length of time'' for which support will be paid ranges from the longest of two formulas used to determine the low end of the range to the longest of two formulas used to determine the high end of the range. If a couple have been together for more than 20 years, or if the age of the dependant party plus the number of years of the relationship equals 65, support will be paid indefinitely.</blockquote>
<blockquote>The ''low range'' formulas for duration are:</blockquote>
<blockquote><blockquote>1) 0.5 years for each year of the relationship</blockquote></blockquote>
<blockquote><blockquote>2) the length of time remaining until the youngest child starts full-time school</blockquote></blockquote>
<blockquote>The ''high range'' formulas for duration are:</blockquote>
<blockquote><blockquote>1) 1 year for each year of the relationship</blockquote></blockquote>
<blockquote><blockquote>2) the length of time remaining until the youngest child finishes full-time school</blockquote></blockquote>

I told you it was complex. To quote Professor Thompson, "this is not a calculation you can do on the back of an envelope, you will need a computer program." This formula requires a detailed understanding of how income is determined under the Advisory Guidelines and of the various government benefits, tax deductions and tax credits that can apply to adjust net income.

I've written a paper on the subject for the Department of Justice, "[http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/calc/index.html Obtaining Reliable and Repeatable SSAG Calculations]," which is available to the public. Be warned: it's a bit dry.

The maximum amount payable under this formula is the range the formula sets out: 40% to 46% of the difference between the payor's net disposable income and the recipient's net disposable income.

The maximum time spousal support can be payable under this formula is an indefinite amount of time.

The factors this formula uses are:

*the payor's gross income,
*the recipient's gross income,
*the length of time the parties lived together,
*the recipient's age,
*the number of children child support is payable for, and
*the number of years until the youngest child starts and leaves full-time school.

===The other ''With Child Support'' formulas===

The Advisory Guidelines describe a few other formulas that apply when:

*all of the children are over the age of majority,
*the parents have split custody of the children,
*the parents have shared custody of the children,
*the children live with the payor, or
*the children are step-children to the payor.

These formulas use modified or hybrid versions of the Without Child Support and main With Child Support formulas.

==Restructuring the results of the Advisory Guidelines formulas==

The Advisory Guidelines includes a few ways to accommodate circumstances that might make the formulas' results unfair to the people involved. The Advisory Guidelines requires that the parties first attempt to use the ranges to solve the problem, but allows for the results to be ''restructured'' if adjustments within the ranges fail to solve the problem.

There are three ways the results can be restructured:

#pay more spousal support each month, but for a shorter period of time,
#pay less each month, but pay for a longer period of time, or
#pay the total amount payable over the period of the award in a single lump sum.

The point of each option is that the total amount payable under the formula results stays the same. The total amount is just paid sooner or later than the results for duration would normally require.

Restructuring will not work if the length of time support is to be paid for is indefinite. In cases like this, the best option is probably to build in a review date, a date on which the recipient's entitlement to receive spousal support will be checked.

==Exceptions to the Advisory Guidelines formulas==

If adjusting support within the ranges doesn't work and if restructuring support doesn't work, the Advisory Guidelines allows parties to depart from the numbers produced by the formulas to accommodate their special circumstances. The authors of the Advisory Guidelines are clear that these exceptions are to be treated as a last resort.

===Greater need for compensation===

In shorter marriages, the results produced by the formulas might not reflect a recipient's right to be compensated for a sacrifice made in the course of the marriage. Circumstances that might fall into this exception would include: giving up a job to be with the payor; or, moving across the country to be with the payor and losing a job or a business.

Under this exception, the results produced by the formulas for amount and duration will not apply.

===Illness===

The length of time the formulas require support to be paid may not be adequate for a recipient who is ill or disabled, or otherwise unable to become self-sufficient.

Under this exception, the results produced by the formula for duration will not apply.

===Payment of family debts===

A payor who winds up being responsible to pay for debts incurred during the marriage may not be able to meet the payments required by the formula for amount. This will particularly be the case for families whose debts exceed their assets.

Under this exception, the results produced by the formula for amount will not apply.

===Other support obligations===

In cases where a payor has an obligation to provide support to other people, such as prior spouses or children from previous relationships, the payor may not be able to pay spousal support at the amount required by the formula.

Under this exception, the payor's income is adjusted to deduct the amount of support paid as a result of the previous relationship before calculating the amount spousal support to be paid for the present relationship.

===Other exceptions===

The Advisory Guidelines allows still other exceptions from the formulas to address situations where a child has special needs that result in the parents having greater expenses than other parents; where a relationship was very short but resulted in significant economic loss to the recipient ― like the loss of a career opportunity or an expensive move; where payment of support within the ranges for amount is not sufficient to meet the recipient's needs; and, where the payor's income is not taxed.

If you think your situation falls into one of these exceptions, or one of the exceptions discussed above, you should seriously consider hiring a lawyer for advice about your situation and how the Advisory Guidelines may apply.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Documents===

* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]
* ''[http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/calc/index.html Obtaining Reliable and Repeatable SSAG Calculations]'', by JP Boyd

===Links===

* [http://mysupportcalculator.ca DivorceMate’s free basic spousal support calculator]
* [http://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law Website: Spousal support]
* [http://clicklaw.bc.ca/resource/1239 Canadian Bar Association BC Branch: Script on spousal support]
* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice: About spousal support]
* [http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/index.html SSAG User’s Guide]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}

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[[Category:JP Boyd on Family Law]]

Basic Principles of Spousal Support

2019-05-15T16:54:30Z

David Dundee: /* Standing under the FLA */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=spousal+support&f=Family+law Spousal Support]
}}Spousal support can be payable, or not payable, because of a family law agreement or because of a court order. When support can't be agreed on, married and formerly married spouses can apply for spousal support under the federal ''[[Divorce Act]]''. Although both married and unmarried spouses can apply for spousal support under the provincial ''[[Family Law Act]]'', there are special rules about how a couple qualify as spouses under that act and special rules about when claims for spousal support can be made.

This section provides an introduction to the basic principles of the law on spousal support, and explores how spousal support is awarded under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''.

It also discusses the basics of calculating the amount of support to be paid when someone is entitled to receive it, and looks at the sort of support orders the court can make, including interim and final orders.

==Introduction==

When analyzing a spousal support claim, the court will consider the following questions:

#Is the person applying as a ''spouse''? That is, do they fit within the category of persons allowed to apply? Or, as it is sometimes put, do they have ''standing'' to apply?
#Is the person applying in time? That is, do they fit within the applicable ''limitation period''?
#Has the person demonstrated an ''entitlement'' to spousal support?
#If all of the above are answered, “yes”, what is the appropriate ''amount'' and ''duration'' of support?

The first two vary depending on which act the person is relying on. The third, entitlement, is common to both the ''Divorce Act'' and the ''Family Law Act''. Generally speaking, entitlement to spousal support is established where:

# a spouse has suffered economic loss or hardship as a result of the relationship or the breakdown of the relationship (called compensatory entitlement),
# there is a contract between the spouse that requires that spousal support be paid (contractual entitlement), or
#a spouse is in financial need after separation and the other spouse has the ability and disposable income to meet that need (needs-based entitlement). Need, in this context, is not limited to the basic necessities, but can mean being unable to maintain the prior married standard of living without assistance.

A person who is claiming spousal support in court will generally wind up making their application based on one of these grounds. In determining whether the ground has been proven, the court will look at the factors and requirements set out in the relevant legislation.

In BC, the amount and duration of support are largely determined with reference to [[The Spousal Support Advisory Guidelines]].

===The ''Divorce Act''===
====Standing and the ''Divorce Act''====
If the claim for spousal support is being made under the federal ''[[Divorce Act]]'', the parties must be or have been married, and the person asking for spousal support must have lived in the province in which the court proceeding is started for at least a year before the proceeding is started in order to have standing.

====Limitation periods and the ''Divorce Act''====
The ''Divorce Act'' doesn't have any rule about when an application for support can be brought following divorce. Under the ''Divorce Act'', a spouse is always a spouse entitled to apply for support. Nonetheless, the court may dismiss a claim based on delay. (If you wait several years, the court may wonder whether you really needed support at all.) So, it is still important to pursue support as soon as reasonably possible.

====Entitlement and the ''Divorce Act''====
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 15.2(6) of the ''[[Divorce Act]]''. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 15.2(4). [[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

====Amount and duration of support====
[[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

===The ''Family Law Act''===
====Standing under the ''FLA''====
If the claim is being made under the provincial ''[[Family Law Act]]'', spousal support is available for married and unmarried spouses. For unmarried spouses, spousal support may be payable, providing that:

#the parties lived in a ''marriage-like relationship'' for a continuous period of at least two years, or
#the parties lived in a marriage-like relationship for less than two years and have a child together.

As to what constitutes a “marriage-like relationship”, the courts take a holistic approach. The presence or absence of any particular factor is not determinative: [http://canlii.ca/t/1txxkand Austin v. Goerz] 2007 BCCA 586 and [http://canlii.ca/t/gm9nx Weber v Leclerc], 2015 BCCA 492. It does not require a blending of finances, monogamy, planning for retirement or death, a decision to have children, or other hallmarks of traditional (whatever that is) marriage. The presence of such factors can help; but their absence may not be fatal. What is essential is that the court can see a committed relationship in some sense sufficient to raise an obligation for support. That may sound circular (and it is), but it is nonetheless the task for a judge where the question is in doubt.

If the parties have a child, and live together with that child in a marriage-like relationship, a plain reading of the statute suggests that not only is two years co-habitation not required, any length of cohabitation will do. So far, at least one case seems to agree: [http://canlii.ca/t/gfdtg J.M. v R.B.], 2014 BCPC 269, at paragraph 90 (discussing the a similar test under section 39).

====Limitation period====
Married spouses must start a court proceeding claiming spousal support within two years of the date of their ''divorce'' or an order ''annulling'' their marriage. Unmarried spouses must start a court proceeding within two years of the date of their ''separation''.

“Separation” does not equate to moving out. Under section 3(4) of the the ''[[Family Law Act]]'', for spouses to be separated there must be:

#communication by one spouse of an intention to separate permanently and
#some action to demonstrate this intention

That could be moving into the guest room, or to the couch. Spouses can be separated while still living under the same roof. Two years from the date of separation – especially where ``separation`` can be uncertain – is a short period of time. It can take you by surprise and sneak up on you, especially if it `feels` like you are still together, even if desperately unhappy. If there is any doubt whether you have been separated, seek legal advice.

In certain cases, if a former spouse has been led by the other spouse to feel they are still together, or that the other spouse will not take advantage of the limitation period, the other spouse my be prevented (``estopped``) from relying on the limitation period. Such will be the case, for example, where the other spouse makes voluntary support payments: [http://canlii.ca/t/1f3ss Pierce v Pierce], 1997 CanLII 2583. But do not place all your hopes in this basket. If there is talk of separation, better to know your rights than be sorry you didn’t.
The limitation period will also be suspended for so long as the parties engage in ``family dispute resolution with a family dispute resolution professional``. These are defined terms and regrettably do not apply to all efforts to resolve the dispute out of court.

====Entitlement====
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 161 of the ''[[Family Law Act]]''. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 162. The ''[[Family Law Act]]'' objectives and factors for spousal support are the same as the ''[[Divorce Act]]'' objectives and factors

====Amount and duration====
[[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

===June and Ward Cleaver: An explanation of spousal support===

The point of spousal support is to provide assistance to a spouse who is financially dependent on the other spouse, or to a spouse who has been financially disadvantaged as a result of the relationship. Let's use the classic TV show, ''Leave it to Beaver'' as an example.

<blockquote>June and Ward are married and have a very traditional relationship. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.</blockquote>
<blockquote>June, who might well have been a research scientist at NASA before she got married, has chosen to abandon her career to take care of Wally and the Beaver and make sure that Ward has a nice hot dinner waiting when he comes home.</blockquote>
<blockquote>Ward, on the other hand, has been given the opportunity to have a fabulous career. June's labour in the home has freed his time up so that he can go to work and get raises and promotions, without having to worry about getting the Beaver ready for school, preparing meals for the family, or doing the dishes.</blockquote>
<blockquote>Skip forward a few years. Ward discovers that June's relationship with the mail carrier isn't quite as businesslike as he'd thought. Ward and June separate, Wally moves in with his girlfriend and the Beaver stays with June in the former family home. Ward moves into a new apartment with his secretary.</blockquote>
<blockquote>As a result of the way that Ward and June handled their marriage, Ward has been allowed to pursue a successful career and earn lots of money. Ward is in a great position to move on with his life.</blockquote>
<blockquote>June, however, isn't so lucky. Her research skills from her work at NASA are obsolete, her master's degree in orbital dynamics isn't relevant any more, and she has no idea how to operate the fancy new equipment that NASA has bought since she last worked there. Making matters worse, the last entry on her resume is fifteen years old. If June's going to go back to work, it won't be at NASA, it'll be at Tim Hortons.</blockquote>

In this example, June has been financially disadvantaged as a result of the marriage. While Ward is in good shape and his career shows no sign of decline, June has no way to easily re-enter the workforce because her job skills are out-of-date. Of course, they have two great kids, but the best job June will be able to get will be as a Tim Hortons trainee, and that won't pay enough to cover the cost of the mortgage, the gas bill, the phone bill, and all of life's sundry other expenses.

As a result of how Ward and June elected to manage their marriage, Ward will, in all likelihood, have to pay spousal support to June to help her get by and help maintain the house while she upgrades her education and gets some job retraining.

===Spousal support and the division of property===

The issues of spousal support and the division of the family property are somewhat intertwined. Before the ''Family Law Act'', the court had to turn its mind to the question of spousal support after the family property, if any, had been divided between the parties. In other words, the division of property might have been adjusted in such a way as to have a direct effect on the support recipient’s need for support. There may be no need, or the amount of support required may be simply a top up to the order for property division for the objects of spousal support to be met.

Now, the order is reversed. The court considers spousal support first and if, say, the paying spouse did not have the means to pay proper support, the court may adjust property division to redress the balance.

===Spousal support, fault and misconduct===

Divorce in Canada has been ''no-fault'' since the ''[[Divorce Act]]'' was updated in 1968, and the ''Family Relations Act'' followed suit when it was introduced in 1972.

A no-fault system means that the conduct of the spouses during their relationship and the reasons why their relationship has ended have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how property and debt are divided. Whether someone was abusive or a cheater, for example, is not relevant to the court's consideration of these issues. In fact, s. 15.2(5) of the ''[[Divorce Act]]'' says:

<blockquote><tt>In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.</tt></blockquote>

The Supreme Court of Canada, in a 2006 ''[[Divorce Act]]'' case called ''[http://canlii.ca/t/1nmrd Leskun v. Leskun]'', [2006] SCC 25 confirmed that the misconduct of the spouses must not be taken into consideration in making a decision about whether spousal support should be paid following the end of their marriage. But even in ''Leskun'', the court distinguished between ''misconduct itself'' and the ''effects of misconduct'' on the parties after separation:

<blockquote><tt>21.There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the [''Divorce Act''] however, is to focus on the consequences of the spousal misconduct not the attribution of fault.</tt></blockquote>

The ''[[Family Law Act]]'' takes a slightly different approach. Section 166 says this:

<blockquote><tt>In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably</tt></blockquote>
<blockquote><blockquote><tt>(a) causes, prolongs or aggravates the need for spousal support, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) affects the ability to provide spousal support.</tt></blockquote></blockquote>

In other words, under the ''Family Law Act'', the court cannot consider misconduct generally (the same as under the ''Divorce Act''), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the payor is being undermined in their ability to pay support.

===Securing a spousal support obligation===

Under s. 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,
*require a payor with life insurance to maintain that policy and specify that a spouse will be the beneficiary or the policy, or
*order that spousal support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires spousal support to be paid from the payor's estate, under s. 171(1), the court must consider:

*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate,
*whether any other means exist to meet the recipient's needs.

===Spousal support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

==The objectives and factors of spousal support==

Under s. 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the ''objectives'' set out in s. 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the ''factors'' set out in s. 162.

Section 15.2(6) of the ''[[Divorce Act]]'' and s. 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order:

<blockquote><tt>(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;</tt></blockquote>
<blockquote><tt>(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;</tt></blockquote>
<blockquote><tt>(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; and</tt></blockquote>
<blockquote><tt>(d) as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.</tt></blockquote>

The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment.

The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make their best efforts to become self-sufficient at some point following separation. A spousal relationship is not intended to be a lifelong meal ticket; at some point, a dependant spouse must usually become independent.

These sections of the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows them to meet their daily needs.

While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents them from becoming independent, there will likely be an end date to support payments.

Section 15.2(4) of the ''[[Divorce Act]]'' and s. 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order

<blockquote><tt>(a) the length of time the spouses cohabited;</tt></blockquote>
<blockquote><tt>(b) the functions performed by each spouse during the period they lived together; and</tt></blockquote>
<blockquote><tt>(c) an agreement between the spouses, or an order, relating to support of either spouse.</tt></blockquote>

These factors help the court decide how much spousal support should be paid and for how long, but the court will consider facts about the spouses, their relationship and their circumstances in addition to these.

===Spousal support and child support===

Section 15.3 of the ''[[Divorce Act]]'' and s. 173 of the ''[[Family Law Act]]'' state that child support must take priority over an order for spousal support. When the payor cannot pay both spousal support and child support, the court is required to make an order for child support at the expense of an order for spousal support. Children come first.

===Statutory provisions===

These are the primary sections of the ''[[Divorce Act]]'' dealing with spousal support:

*s. 2: definitions
*s. 4: jurisdiction to make spousal support orders
*s. 5: jurisdiction to change orders
*s. 15: definition of ''spouse''
*s. 15.2: spousal support orders
*s. 15.3: child support has priority over spousal support
*s. 17: varying support orders

These are the primary sections of the ''[[Family Law Act]]'' dealing with spousal support:

*s. 1: definitions
*s. 3: spouses and relationships between spouses
*s. 146: more definitions
*s. 161: objectives of spousal support
*s. 162: factors to determine the amount and duration of spousal support
*s. 163: agreements about spousal support
*s. 164: setting aside agreements about spousal support
*s. 166: misconduct
*s. 167: varying spousal support orders
*s. 168: review of spousal support
*s. 170: things that may be included in support orders
*s. 171: support obligations after death (of payor)
*s. 172 and 173: spousal support and child support
*s. 174: cancellation or reduction of arrears
*s. 198: time limits

==Calculating spousal support==

Once it is decided that a person is entitled to spousal support, the amount of spousal support has to be calculated. It is difficult to predict exactly how much spousal support will be paid in any given case. Many different factors can influence the amount spousal support. However, in British Columbia the [[Spousal Support Advisory Guidelines]] are frequently used by the courts to determine the amount of spousal support and so the Guidelines are a good starting point.

You can visit DIVORCEmate’s website for their free spousal support calculator, [http://mysupportcalculator.ca mysupportcalculator.ca]. This calculator is very good for simple situations, but if there is anything complicated about your circumstances you may want to meet with a lawyer who has bought DIVORCEmate’s expensive commercial software. The lawyer should be able to give you some fairly fine-tuned numbers. This chapter’s section on the [[Spousal Support Advisory Guidelines]] discusses the Advisory Guidelines formulas in a lot more detail.

In addition to considering the Spousal Support Advisory Guidelines, it is important that each party prepare a sworn financial statement whether a court proceeding has been started or not. In provincial court, the Financial Statement is called a [[PCFR Form 4 Financial Statement|Form 4]] and in Supreme Court, the Financial Statement is called a [[Form F8 Financial Statement|Form F8]]. The financial statement sets out each party’s income and assets, expenses and liabilities.

When a spousal support calculation is done by the Spousal Support Advisory Guidelines, the calculation sets out three amounts of possible spousal support: a low amount, a mid amount and a high amount ([http://mysupportcalculator.ca/ mysupportcalculator.ca] only provides the high and low amounts, not the mid amount of the range). There can be hundreds of dollars difference between the low and high amounts of spousal support. The expenses of the parties that are set out in their financial statements can help decide whether spousal support should be at the low amount, the mid amount, the high amount or even outside of the amounts suggested by the Spousal Support Advisory Guidelines entirely.

Ideally, a spousal support payment will leave both parties (not just the party who earns more money) with enough to look after their living expenses. The court will not bankrupt a payor in order to meet the dependent spouse’s needs. In many cases, this mean that both parties must adjust their standard of living to be able to live within the pool of income available to them. The parties’ expenses on their financial statement can help show how much money each party needs to meet their living expenses and how much money the payor has left over to pay spousal support after their
reasonable monthly living expenses for things like rent, utilities, groceries and so forth are met.

==Orders and agreements on spousal support==

Spousal support is a very grey area of the law, with few hard and fast rules. As a result, every order or agreement dealing with spousal support will be tailored to the particular circumstances of the parties, even orders and agreements that say that no spousal support will be paid.

===Interim orders and agreements===

''Interim orders'' are temporary orders made once a court proceeding has started. Interim orders are not meant to be permanent. They last until another interim order is made or the proceeding wraps up with a trial or a settlement. Likewise, ''interim agreements'' are agreements made when settlement discussions have started, and they are meant to last only until a final agreement is negotiated.

The court will think about the same things when it hears an application for an interim spousal support order as it does at the hearing for a final order. At least, that's the general rule. In reality, however, the court usually takes a pretty rough and ready approach to interim applications based on something called the ''means and needs'' test. This test asks:

*Does the person making the application, the ''applicant'', have a need for support?
*Does the other person, the ''respondent'', have the means to pay it?

The court will not usually attempt to decide whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In a case called ''[http://canlii.ca/t/1mtw3 L.C.M. v. M.A.C.M.]'', 2005 BCSC 1786 (a 2005 decision of our Supreme Court), the judge said that interim spousal support should only be awarded where an obvious case for entitlement is made out.

Spousal support will often be awarded on an interim basis where:

*there are young children who need a stay-at-home caregiver,
*the applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years,
*the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills, or
*the applicant is employed but is unable to pay the household bills without help.

Of course, ''need'' alone isn't enough, and the person against whom the application is brought must have the ability to actually ''pay'' support. Whether the payor has the means to pay support is usually figured out by looking at the payor's monthly income, less any child support obligations, less their reasonable monthly expenses. If there is money left over, (''disposable income''), some or all of that money is available to be paid as spousal support.

Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes enough to help the applicant enjoy more or less the same standard of living that they enjoyed before the parties separated.

===Final orders and agreements: periodic payments===

Under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'', a court may make an order for spousal support for regular payments, called ''periodic payments'', to run for a fixed period of time (a ''definite'' term), or to run without a particular end date (an ''indefinite'' term). Whether an order requires that spousal support be paid for a definite or indefinite term will depend on the particular circumstances of each case. In general, however, the longer the relationship was and the older the parties are, the more likely it is that the court will make an indefinite order for spousal support.

====Indefinite obligations====

Indefinite orders for spousal support are often made where one or more of the following circumstances exist:

*the parties' relationship was lengthy,
*the recipient is unable to re-enter the work force because of physical or mental health issues,
*the recipient is elderly and unable or likely unable to re-enter the workforce,
*the recipient's child care or other obligations make it impossible for them re-enter the workforce, or
*the consequences of the breakdown of the relationship, including mental health issues such as depression, have left the recipient unable to work.

An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are that:

*if the recipient remarries,
*if the recipient lives with another person in a marriage-like relationship for longer than a certain amount of time,
*if the recipient obtains employment and earns more than a specified amount,
*if the payor retires, or
*if the recipient or the payor dies.

====Reviewable orders and agreements====

Under s. 168 of the ''[[Family Law Act]]'', an order or agreement that requires the payment of spousal support can be ''reviewable''.

A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a ''review date''. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as:

*the children leaving home,
*the recipient recovering from an illness,
*the recipient becoming employed or finishing a course of training or education,
*the recipient or the payor reaching a certain age or retiring,
*the recipient or the payor beginning to receive pension benefits,
*the sale of a property, or
*the recipient entering into a new spousal relationship.

When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation usually continues until the review finally takes place, whether the review is started by the recipient or the payor.

At the review, either spouse may seek to cancel or extend the support obligation, or to reduce or increase the amount of spousal support paid. The review will usually be based on parties' financial circumstances at the time of the review, but can take into account other factors, like the recipient's health or the recipient's efforts to find employment. A reviewable order or agreement can specify how the review will be conducted, which might be by mediation, a collaborative settlement process, or arbitration. Reviews don't have to happen in court.

====Definite-term obligations====

Orders or agreements that provide that spousal support is to be paid for a specific period of time are usually made when it is clear that a dependant person has the ability to become self-sufficient within a fairly short amount of time or a payor's resources are plainly limited.

Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship:

*the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs,
*the recipient has relevant job training or skills at the time that the relationship breaks down and is expected to return to work in short order,
*the recipient had a successful career before or during the relationship and is expected to return to work in short order,
*the recipient merely requires some time to adjust to their new living circumstances and will become self-sufficient relatively quickly, or
*the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force.

The length of time for which support must be paid usually reflects one or more of the following factors:

*the length of the parties' relationship,
*the extent and nature of the parties' employment during their relationship,
*the time the court estimates it will take the recipient to complete job training, if unemployed,
*the amount of the recipient's income, if employed,
*the payor's retirement date,
*the recipient's anticipated length of recovery from an illness, or
*the age at which the children will enter school or the age at which they can enter daycare.

===Final orders and agreements: lump-sum payments===

A ''lump sum'' order or agreement for spousal support requires the payor to make a large, one-time-only payment of spousal support. This kind of spousal support payment is fairly rare, partly because the payment of a lump sum of spousal support is often difficult to distinguish from the division of property, partly because a lump-sum payment may not adequately address the need the payment of spousal support is meant to address, and partly because few payors can afford to make a lump-sum payment.

Whether the court is dealing with an application for lump-sum spousal support rather than the more usual periodic-payment support obligation, the court will usually be concerned that the payment of spousal support isn't going to act as a substitute for the division of family property. The court will also be concerned that a lump-sum payment may not actually help the recipient become financially independent.

Payors are sometimes interested in lump-sum spousal support payments for the reason that the single payment will allow them to wash their hair of the other party and have done with it immediately, rather than having to deal with the other party on an ongoing basis. Recipients are usually interested in lump-sum spousal support payments where the cash is needed to make a down payment or some other payment that will contribute to their future security.

The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where:

*the payor has a history of failing to make periodic support payments,
*the payor has been dishonest or deceitful during the trial, particularly with respect to the extent of their finances,
*there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments,
*the money is necessary to provide a home for the recipient,
*the money is necessary to give the recipient financial security that cannot be had by periodic payments,
*the payor is financially well-off and can afford to make the payment,
*the payor is able to pay a lump sum and the likelihood of the payor being able to make future periodic payments of support is low,
*the money will promote the recipient's self-sufficiency, or
*periodic payments will not encourage the recipient to become self-sufficient.

Lump-sum awards are available on interim applications, but such awards are unusual. A lump-sum payment may be ordered if it is clear that:
*the payment will provide immediate relief for the recipient
*ongoing monthly payments will not be necessary and,
*the payor has the ability to make the payment.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Documents===
* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Links===

* [http://mysupportcalculator.ca Free Basic Spousal Support Calculator from DIVORCEmate]
* [http://childview.ca/ ChildView Spousal Support Calculator Software]
* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice: About spousal support]
* [http://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law Website: Spousal support]
* [http://clicklaw.bc.ca/resource/1239 Canadian Bar Association BC Branch: Script on spousal support]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

David Dundee

2019-05-15T16:46:51Z

David Dundee:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''David C. Dundee''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Spousal Support]]. David is a lawyer with Paul & Company in Kamloops. David received a Bachelor of Arts degree in Honours English in 1978 and a Bachelor of Laws degree in 1981, both from the University of British Columbia. He was called to the bar in 1982. He has practised family law for most of his career, and has focused primarily on family law since he came to Kamloops. He is also a roster child interviewer for the BC Hear the Child Society.

David has been extensively involved with the Canadian Bar Association for many years, in many capacities. He has been chair or co-chair of the Kamloops Family Law Section since 2001. He served eight years on the National Family Section, including one year as chair. As acting chair of the BC Family Law Working Group, he was involved with submissions to government on the ''[[Family Law Act]]'', and on the joint CBA/Law Society Best Practice Guidelines for family law. In 2012, David was awarded the President’s Medal, in part for this work.

David serves on the Justice Ministry's family practice advisory group. He also sits on the Trial Lawyers' Association of BC Family Law Committee.

David has been active with the BC Continuing Legal Education Society for many years, having presented and written on several subjects, including as contributing editor to the ''Family Practice Manual'' and to their transition guide to the ''Family Law Act''.

| name = David C. Dundee
| image = [[image:ddundee.png|150px|left|link=|David Dundee]]
| organization = Paul & Company
| website = [http://www.kamloopslaw.com www.kamloopslaw.com]
}}

<noinclude>
__NOGLOSSARY__
[[Category:Contributor Bio|Dundee]]
[[Category:JP Boyd on Family Law Contributors|Dundee]]
</noinclude>

David Dundee

2019-05-15T16:45:33Z

David Dundee:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''David C. Dundee''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Spousal Support]]. David is a lawyer with Paul & Company in Kamloops. David received a Bachelor of Arts degree in Honours English in 1978 and a Bachelor of Laws degree in 1981, both from the University of British Columbia. He was called to the bar in 1982. He has practised family law for most of his career, and has focused primarily on family law since he came to Kamloops. He is also a roster child interviewer for the BC Hear the Child Society.

David has been extensively involved with the Canadian Bar Association for many years in many capacities. He has been chair or co-chair of the Kamloops Family Law Section since 2001. He served eight years on the National Family Section, including one year as chair. As acting chair of the Family Law Working Group, he was involved with submissions to government on the ''[[Family Law Act]]'', and on the joint CBA/Law Society Best Practice Guidelines for family law. In 2012, David was awarded the President’s Medal, in part for this work.

David serves on the Justice Ministry's family practice advisory group. He also sits on the Trial Lawyers' Association of BC Family Law Committee.

David has been active with the BC Continuing Legal Education Society for many years, having presented and written on several subjects, including as contributing editor to the ''Family Practice Manual'' and to their transition guide to the ''Family Law Act''.

| name = David C. Dundee
| image = [[image:ddundee.png|150px|left|link=|David Dundee]]
| organization = Paul & Company
| website = [http://www.kamloopslaw.com www.kamloopslaw.com]
}}

<noinclude>
__NOGLOSSARY__
[[Category:Contributor Bio|Dundee]]
[[Category:JP Boyd on Family Law Contributors|Dundee]]
</noinclude>

David Dundee

2019-05-15T16:44:46Z

David Dundee:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''David C. Dundee''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Spousal Support]]. David is a lawyer with Paul & Company in Kamloops. David received a Bachelor of Arts degree in Honours English in 1978 and a Bachelor of Laws degree in 1981, both from the University of British Columbia. He was called to the bar in 1982. He has practised family law for most of his career, and has focused primarily on family law since he came to Kamloops.

David has been extensively involved with the Canadian Bar Association for many years in many capacities. He has been chair or co-chair of the Kamloops Family Law Section since 2001. He served eight years on the National Family Section, including one year as chair. As acting chair of the Family Law Working Group, he was involved with submissions to government on the ''[[Family Law Act]]'', and on the joint CBA/Law Society Best Practice Guidelines for family law. In 2012, David was awarded the President’s Medal, in part for this work.

David serves on the Justice Ministry's family practice advisory group. He also sits on the Trial Lawyers' Association of BC Family Law Committee.

David has been active with the BC Continuing Legal Education Society for many years, having presented and written on several subjects, including as contributing editor to the ''Family Practice Manual'' and to their transition guide to the ''Family Law Act''.

| name = David C. Dundee
| image = [[image:ddundee.png|150px|left|link=|David Dundee]]
| organization = Paul & Company
| website = [http://www.kamloopslaw.com www.kamloopslaw.com]
}}

<noinclude>
__NOGLOSSARY__
[[Category:Contributor Bio|Dundee]]
[[Category:JP Boyd on Family Law Contributors|Dundee]]
</noinclude>

Basic Principles of Spousal Support

2019-05-15T16:38:05Z

David Dundee: /* Limitation period */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://www.clicklaw.bc.ca/global/search?k=spousal+support&f=Family+law Spousal Support]
}}Spousal support can be payable, or not payable, because of a family law agreement or because of a court order. When support can't be agreed on, married and formerly married spouses can apply for spousal support under the federal ''[[Divorce Act]]''. Although both married and unmarried spouses can apply for spousal support under the provincial ''[[Family Law Act]]'', there are special rules about how a couple qualify as spouses under that act and special rules about when claims for spousal support can be made.

This section provides an introduction to the basic principles of the law on spousal support, and explores how spousal support is awarded under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''.

It also discusses the basics of calculating the amount of support to be paid when someone is entitled to receive it, and looks at the sort of support orders the court can make, including interim and final orders.

==Introduction==

When analyzing a spousal support claim, the court will consider the following questions:

#Is the person applying as a ''spouse''? That is, do they fit within the category of persons allowed to apply? Or, as it is sometimes put, do they have ''standing'' to apply?
#Is the person applying in time? That is, do they fit within the applicable ''limitation period''?
#Has the person demonstrated an ''entitlement'' to spousal support?
#If all of the above are answered, “yes”, what is the appropriate ''amount'' and ''duration'' of support?

The first two vary depending on which act the person is relying on. The third, entitlement, is common to both the ''Divorce Act'' and the ''Family Law Act''. Generally speaking, entitlement to spousal support is established where:

# a spouse has suffered economic loss or hardship as a result of the relationship or the breakdown of the relationship (called compensatory entitlement),
# there is a contract between the spouse that requires that spousal support be paid (contractual entitlement), or
#a spouse is in financial need after separation and the other spouse has the ability and disposable income to meet that need (needs-based entitlement). Need, in this context, is not limited to the basic necessities, but can mean being unable to maintain the prior married standard of living without assistance.

A person who is claiming spousal support in court will generally wind up making their application based on one of these grounds. In determining whether the ground has been proven, the court will look at the factors and requirements set out in the relevant legislation.

In BC, the amount and duration of support are largely determined with reference to [[The Spousal Support Advisory Guidelines]].

===The ''Divorce Act''===
====Standing and the ''Divorce Act''====
If the claim for spousal support is being made under the federal ''[[Divorce Act]]'', the parties must be or have been married, and the person asking for spousal support must have lived in the province in which the court proceeding is started for at least a year before the proceeding is started in order to have standing.

====Limitation periods and the ''Divorce Act''====
The ''Divorce Act'' doesn't have any rule about when an application for support can be brought following divorce. Under the ''Divorce Act'', a spouse is always a spouse entitled to apply for support. Nonetheless, the court may dismiss a claim based on delay. (If you wait several years, the court may wonder whether you really needed support at all.) So, it is still important to pursue support as soon as reasonably possible.

====Entitlement and the ''Divorce Act''====
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 15.2(6) of the ''[[Divorce Act]]''. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 15.2(4). [[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

====Amount and duration of support====
[[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

===The ''Family Law Act''===
====Standing under the ''FLA''====
If the claim is being made under the provincial ''[[Family Law Act]]'', spousal support is available for married and unmarried spouses. For unmarried spouses, spousal support may be payable, providing that:

#the parties lived in a ''marriage-like relationship'' for a continuous period of at least two years, or
#the parties lived in a marriage-like relationship for less than two years and have a child together.

As to what constitutes a “marriage-like relationship”, the courts take a holistic approach. The presence or absence of any particular factor is not determinative: [http://canlii.ca/t/1txxkand Austin v. Goerz] 2007 BCCA 586 and [http://canlii.ca/t/gm9nx Weber v Leclerc], 2015 BCCA 492. It does not require a blending of finances, monogamy, planning for retirement or death, a decision to have children, or other hallmarks of traditional (whatever that is) marriage. The presence of such factors can help; but their absence may not be fatal. What is essential is that the court can see a committed relationship in some sense sufficient to raise an obligation for support. That may sound circular (and it is), but it is nonetheless the task for a judge where the question is in doubt.

If the parties have a child, and live together with that child in a marriage-like relationship, a plain reading of the statute suggests that not only is two years co-habitation not required, any length of cohabitation will do. So far, at least one case agrees: [http://canlii.ca/t/gfdtg J.M. v R.B.], 2014 BCPC 269

====Limitation period====
Married spouses must start a court proceeding claiming spousal support within two years of the date of their ''divorce'' or an order ''annulling'' their marriage. Unmarried spouses must start a court proceeding within two years of the date of their ''separation''.

“Separation” does not equate to moving out. Under section 3(4) of the the ''[[Family Law Act]]'', for spouses to be separated there must be:

#communication by one spouse of an intention to separate permanently and
#some action to demonstrate this intention

That could be moving into the guest room, or to the couch. Spouses can be separated while still living under the same roof. Two years from the date of separation – especially where ``separation`` can be uncertain – is a short period of time. It can take you by surprise and sneak up on you, especially if it `feels` like you are still together, even if desperately unhappy. If there is any doubt whether you have been separated, seek legal advice.

In certain cases, if a former spouse has been led by the other spouse to feel they are still together, or that the other spouse will not take advantage of the limitation period, the other spouse my be prevented (``estopped``) from relying on the limitation period. Such will be the case, for example, where the other spouse makes voluntary support payments: [http://canlii.ca/t/1f3ss Pierce v Pierce], 1997 CanLII 2583. But do not place all your hopes in this basket. If there is talk of separation, better to know your rights than be sorry you didn’t.
The limitation period will also be suspended for so long as the parties engage in ``family dispute resolution with a family dispute resolution professional``. These are defined terms and regrettably do not apply to all efforts to resolve the dispute out of court.

====Entitlement====
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 161 of the ''[[Family Law Act]]''. If a spouse is entitled to spousal support, the factors that the court will review to determine the amount of support and the length of time for which it should be paid are set out in s. 162. The ''[[Family Law Act]]'' objectives and factors for spousal support are the same as the ''[[Divorce Act]]'' objectives and factors

====Amount and duration====
[[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid.

===June and Ward Cleaver: An explanation of spousal support===

The point of spousal support is to provide assistance to a spouse who is financially dependent on the other spouse, or to a spouse who has been financially disadvantaged as a result of the relationship. Let's use the classic TV show, ''Leave it to Beaver'' as an example.

<blockquote>June and Ward are married and have a very traditional relationship. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.</blockquote>
<blockquote>June, who might well have been a research scientist at NASA before she got married, has chosen to abandon her career to take care of Wally and the Beaver and make sure that Ward has a nice hot dinner waiting when he comes home.</blockquote>
<blockquote>Ward, on the other hand, has been given the opportunity to have a fabulous career. June's labour in the home has freed his time up so that he can go to work and get raises and promotions, without having to worry about getting the Beaver ready for school, preparing meals for the family, or doing the dishes.</blockquote>
<blockquote>Skip forward a few years. Ward discovers that June's relationship with the mail carrier isn't quite as businesslike as he'd thought. Ward and June separate, Wally moves in with his girlfriend and the Beaver stays with June in the former family home. Ward moves into a new apartment with his secretary.</blockquote>
<blockquote>As a result of the way that Ward and June handled their marriage, Ward has been allowed to pursue a successful career and earn lots of money. Ward is in a great position to move on with his life.</blockquote>
<blockquote>June, however, isn't so lucky. Her research skills from her work at NASA are obsolete, her master's degree in orbital dynamics isn't relevant any more, and she has no idea how to operate the fancy new equipment that NASA has bought since she last worked there. Making matters worse, the last entry on her resume is fifteen years old. If June's going to go back to work, it won't be at NASA, it'll be at Tim Hortons.</blockquote>

In this example, June has been financially disadvantaged as a result of the marriage. While Ward is in good shape and his career shows no sign of decline, June has no way to easily re-enter the workforce because her job skills are out-of-date. Of course, they have two great kids, but the best job June will be able to get will be as a Tim Hortons trainee, and that won't pay enough to cover the cost of the mortgage, the gas bill, the phone bill, and all of life's sundry other expenses.

As a result of how Ward and June elected to manage their marriage, Ward will, in all likelihood, have to pay spousal support to June to help her get by and help maintain the house while she upgrades her education and gets some job retraining.

===Spousal support and the division of property===

The issues of spousal support and the division of the family property are somewhat intertwined. Before the ''Family Law Act'', the court had to turn its mind to the question of spousal support after the family property, if any, had been divided between the parties. In other words, the division of property might have been adjusted in such a way as to have a direct effect on the support recipient’s need for support. There may be no need, or the amount of support required may be simply a top up to the order for property division for the objects of spousal support to be met.

Now, the order is reversed. The court considers spousal support first and if, say, the paying spouse did not have the means to pay proper support, the court may adjust property division to redress the balance.

===Spousal support, fault and misconduct===

Divorce in Canada has been ''no-fault'' since the ''[[Divorce Act]]'' was updated in 1968, and the ''Family Relations Act'' followed suit when it was introduced in 1972.

A no-fault system means that the conduct of the spouses during their relationship and the reasons why their relationship has ended have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how property and debt are divided. Whether someone was abusive or a cheater, for example, is not relevant to the court's consideration of these issues. In fact, s. 15.2(5) of the ''[[Divorce Act]]'' says:

<blockquote><tt>In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.</tt></blockquote>

The Supreme Court of Canada, in a 2006 ''[[Divorce Act]]'' case called ''[http://canlii.ca/t/1nmrd Leskun v. Leskun]'', [2006] SCC 25 confirmed that the misconduct of the spouses must not be taken into consideration in making a decision about whether spousal support should be paid following the end of their marriage. But even in ''Leskun'', the court distinguished between ''misconduct itself'' and the ''effects of misconduct'' on the parties after separation:

<blockquote><tt>21.There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the [''Divorce Act''] however, is to focus on the consequences of the spousal misconduct not the attribution of fault.</tt></blockquote>

The ''[[Family Law Act]]'' takes a slightly different approach. Section 166 says this:

<blockquote><tt>In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably</tt></blockquote>
<blockquote><blockquote><tt>(a) causes, prolongs or aggravates the need for spousal support, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) affects the ability to provide spousal support.</tt></blockquote></blockquote>

In other words, under the ''Family Law Act'', the court cannot consider misconduct generally (the same as under the ''Divorce Act''), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the payor is being undermined in their ability to pay support.

===Securing a spousal support obligation===

Under s. 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,
*require a payor with life insurance to maintain that policy and specify that a spouse will be the beneficiary or the policy, or
*order that spousal support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires spousal support to be paid from the payor's estate, under s. 171(1), the court must consider:

*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate,
*whether any other means exist to meet the recipient's needs.

===Spousal support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

==The objectives and factors of spousal support==

Under s. 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the ''objectives'' set out in s. 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the ''factors'' set out in s. 162.

Section 15.2(6) of the ''[[Divorce Act]]'' and s. 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order:

<blockquote><tt>(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;</tt></blockquote>
<blockquote><tt>(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;</tt></blockquote>
<blockquote><tt>(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; and</tt></blockquote>
<blockquote><tt>(d) as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.</tt></blockquote>

The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment.

The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make their best efforts to become self-sufficient at some point following separation. A spousal relationship is not intended to be a lifelong meal ticket; at some point, a dependant spouse must usually become independent.

These sections of the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows them to meet their daily needs.

While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents them from becoming independent, there will likely be an end date to support payments.

Section 15.2(4) of the ''[[Divorce Act]]'' and s. 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order

<blockquote><tt>(a) the length of time the spouses cohabited;</tt></blockquote>
<blockquote><tt>(b) the functions performed by each spouse during the period they lived together; and</tt></blockquote>
<blockquote><tt>(c) an agreement between the spouses, or an order, relating to support of either spouse.</tt></blockquote>

These factors help the court decide how much spousal support should be paid and for how long, but the court will consider facts about the spouses, their relationship and their circumstances in addition to these.

===Spousal support and child support===

Section 15.3 of the ''[[Divorce Act]]'' and s. 173 of the ''[[Family Law Act]]'' state that child support must take priority over an order for spousal support. When the payor cannot pay both spousal support and child support, the court is required to make an order for child support at the expense of an order for spousal support. Children come first.

===Statutory provisions===

These are the primary sections of the ''[[Divorce Act]]'' dealing with spousal support:

*s. 2: definitions
*s. 4: jurisdiction to make spousal support orders
*s. 5: jurisdiction to change orders
*s. 15: definition of ''spouse''
*s. 15.2: spousal support orders
*s. 15.3: child support has priority over spousal support
*s. 17: varying support orders

These are the primary sections of the ''[[Family Law Act]]'' dealing with spousal support:

*s. 1: definitions
*s. 3: spouses and relationships between spouses
*s. 146: more definitions
*s. 161: objectives of spousal support
*s. 162: factors to determine the amount and duration of spousal support
*s. 163: agreements about spousal support
*s. 164: setting aside agreements about spousal support
*s. 166: misconduct
*s. 167: varying spousal support orders
*s. 168: review of spousal support
*s. 170: things that may be included in support orders
*s. 171: support obligations after death (of payor)
*s. 172 and 173: spousal support and child support
*s. 174: cancellation or reduction of arrears
*s. 198: time limits

==Calculating spousal support==

Once it is decided that a person is entitled to spousal support, the amount of spousal support has to be calculated. It is difficult to predict exactly how much spousal support will be paid in any given case. Many different factors can influence the amount spousal support. However, in British Columbia the [[Spousal Support Advisory Guidelines]] are frequently used by the courts to determine the amount of spousal support and so the Guidelines are a good starting point.

You can visit DIVORCEmate’s website for their free spousal support calculator, [http://mysupportcalculator.ca mysupportcalculator.ca]. This calculator is very good for simple situations, but if there is anything complicated about your circumstances you may want to meet with a lawyer who has bought DIVORCEmate’s expensive commercial software. The lawyer should be able to give you some fairly fine-tuned numbers. This chapter’s section on the [[Spousal Support Advisory Guidelines]] discusses the Advisory Guidelines formulas in a lot more detail.

In addition to considering the Spousal Support Advisory Guidelines, it is important that each party prepare a sworn financial statement whether a court proceeding has been started or not. In provincial court, the Financial Statement is called a [[PCFR Form 4 Financial Statement|Form 4]] and in Supreme Court, the Financial Statement is called a [[Form F8 Financial Statement|Form F8]]. The financial statement sets out each party’s income and assets, expenses and liabilities.

When a spousal support calculation is done by the Spousal Support Advisory Guidelines, the calculation sets out three amounts of possible spousal support: a low amount, a mid amount and a high amount ([http://mysupportcalculator.ca/ mysupportcalculator.ca] only provides the high and low amounts, not the mid amount of the range). There can be hundreds of dollars difference between the low and high amounts of spousal support. The expenses of the parties that are set out in their financial statements can help decide whether spousal support should be at the low amount, the mid amount, the high amount or even outside of the amounts suggested by the Spousal Support Advisory Guidelines entirely.

Ideally, a spousal support payment will leave both parties (not just the party who earns more money) with enough to look after their living expenses. The court will not bankrupt a payor in order to meet the dependent spouse’s needs. In many cases, this mean that both parties must adjust their standard of living to be able to live within the pool of income available to them. The parties’ expenses on their financial statement can help show how much money each party needs to meet their living expenses and how much money the payor has left over to pay spousal support after their
reasonable monthly living expenses for things like rent, utilities, groceries and so forth are met.

==Orders and agreements on spousal support==

Spousal support is a very grey area of the law, with few hard and fast rules. As a result, every order or agreement dealing with spousal support will be tailored to the particular circumstances of the parties, even orders and agreements that say that no spousal support will be paid.

===Interim orders and agreements===

''Interim orders'' are temporary orders made once a court proceeding has started. Interim orders are not meant to be permanent. They last until another interim order is made or the proceeding wraps up with a trial or a settlement. Likewise, ''interim agreements'' are agreements made when settlement discussions have started, and they are meant to last only until a final agreement is negotiated.

The court will think about the same things when it hears an application for an interim spousal support order as it does at the hearing for a final order. At least, that's the general rule. In reality, however, the court usually takes a pretty rough and ready approach to interim applications based on something called the ''means and needs'' test. This test asks:

*Does the person making the application, the ''applicant'', have a need for support?
*Does the other person, the ''respondent'', have the means to pay it?

The court will not usually attempt to decide whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In a case called ''[http://canlii.ca/t/1mtw3 L.C.M. v. M.A.C.M.]'', 2005 BCSC 1786 (a 2005 decision of our Supreme Court), the judge said that interim spousal support should only be awarded where an obvious case for entitlement is made out.

Spousal support will often be awarded on an interim basis where:

*there are young children who need a stay-at-home caregiver,
*the applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years,
*the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills, or
*the applicant is employed but is unable to pay the household bills without help.

Of course, ''need'' alone isn't enough, and the person against whom the application is brought must have the ability to actually ''pay'' support. Whether the payor has the means to pay support is usually figured out by looking at the payor's monthly income, less any child support obligations, less their reasonable monthly expenses. If there is money left over, (''disposable income''), some or all of that money is available to be paid as spousal support.

Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes enough to help the applicant enjoy more or less the same standard of living that they enjoyed before the parties separated.

===Final orders and agreements: periodic payments===

Under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'', a court may make an order for spousal support for regular payments, called ''periodic payments'', to run for a fixed period of time (a ''definite'' term), or to run without a particular end date (an ''indefinite'' term). Whether an order requires that spousal support be paid for a definite or indefinite term will depend on the particular circumstances of each case. In general, however, the longer the relationship was and the older the parties are, the more likely it is that the court will make an indefinite order for spousal support.

====Indefinite obligations====

Indefinite orders for spousal support are often made where one or more of the following circumstances exist:

*the parties' relationship was lengthy,
*the recipient is unable to re-enter the work force because of physical or mental health issues,
*the recipient is elderly and unable or likely unable to re-enter the workforce,
*the recipient's child care or other obligations make it impossible for them re-enter the workforce, or
*the consequences of the breakdown of the relationship, including mental health issues such as depression, have left the recipient unable to work.

An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are that:

*if the recipient remarries,
*if the recipient lives with another person in a marriage-like relationship for longer than a certain amount of time,
*if the recipient obtains employment and earns more than a specified amount,
*if the payor retires, or
*if the recipient or the payor dies.

====Reviewable orders and agreements====

Under s. 168 of the ''[[Family Law Act]]'', an order or agreement that requires the payment of spousal support can be ''reviewable''.

A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a ''review date''. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as:

*the children leaving home,
*the recipient recovering from an illness,
*the recipient becoming employed or finishing a course of training or education,
*the recipient or the payor reaching a certain age or retiring,
*the recipient or the payor beginning to receive pension benefits,
*the sale of a property, or
*the recipient entering into a new spousal relationship.

When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation usually continues until the review finally takes place, whether the review is started by the recipient or the payor.

At the review, either spouse may seek to cancel or extend the support obligation, or to reduce or increase the amount of spousal support paid. The review will usually be based on parties' financial circumstances at the time of the review, but can take into account other factors, like the recipient's health or the recipient's efforts to find employment. A reviewable order or agreement can specify how the review will be conducted, which might be by mediation, a collaborative settlement process, or arbitration. Reviews don't have to happen in court.

====Definite-term obligations====

Orders or agreements that provide that spousal support is to be paid for a specific period of time are usually made when it is clear that a dependant person has the ability to become self-sufficient within a fairly short amount of time or a payor's resources are plainly limited.

Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship:

*the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs,
*the recipient has relevant job training or skills at the time that the relationship breaks down and is expected to return to work in short order,
*the recipient had a successful career before or during the relationship and is expected to return to work in short order,
*the recipient merely requires some time to adjust to their new living circumstances and will become self-sufficient relatively quickly, or
*the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force.

The length of time for which support must be paid usually reflects one or more of the following factors:

*the length of the parties' relationship,
*the extent and nature of the parties' employment during their relationship,
*the time the court estimates it will take the recipient to complete job training, if unemployed,
*the amount of the recipient's income, if employed,
*the payor's retirement date,
*the recipient's anticipated length of recovery from an illness, or
*the age at which the children will enter school or the age at which they can enter daycare.

===Final orders and agreements: lump-sum payments===

A ''lump sum'' order or agreement for spousal support requires the payor to make a large, one-time-only payment of spousal support. This kind of spousal support payment is fairly rare, partly because the payment of a lump sum of spousal support is often difficult to distinguish from the division of property, partly because a lump-sum payment may not adequately address the need the payment of spousal support is meant to address, and partly because few payors can afford to make a lump-sum payment.

Whether the court is dealing with an application for lump-sum spousal support rather than the more usual periodic-payment support obligation, the court will usually be concerned that the payment of spousal support isn't going to act as a substitute for the division of family property. The court will also be concerned that a lump-sum payment may not actually help the recipient become financially independent.

Payors are sometimes interested in lump-sum spousal support payments for the reason that the single payment will allow them to wash their hair of the other party and have done with it immediately, rather than having to deal with the other party on an ongoing basis. Recipients are usually interested in lump-sum spousal support payments where the cash is needed to make a down payment or some other payment that will contribute to their future security.

The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where:

*the payor has a history of failing to make periodic support payments,
*the payor has been dishonest or deceitful during the trial, particularly with respect to the extent of their finances,
*there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments,
*the money is necessary to provide a home for the recipient,
*the money is necessary to give the recipient financial security that cannot be had by periodic payments,
*the payor is financially well-off and can afford to make the payment,
*the payor is able to pay a lump sum and the likelihood of the payor being able to make future periodic payments of support is low,
*the money will promote the recipient's self-sufficiency, or
*periodic payments will not encourage the recipient to become self-sufficient.

Lump-sum awards are available on interim applications, but such awards are unusual. A lump-sum payment may be ordered if it is clear that:
*the payment will provide immediate relief for the recipient
*ongoing monthly payments will not be necessary and,
*the payor has the ability to make the payment.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Documents===
* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines]

===Links===

* [http://mysupportcalculator.ca Free Basic Spousal Support Calculator from DIVORCEmate]
* [http://childview.ca/ ChildView Spousal Support Calculator Software]
* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice: About spousal support]
* [http://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law Website: Spousal support]
* [http://clicklaw.bc.ca/resource/1239 Canadian Bar Association BC Branch: Script on spousal support]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}

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[[Category:JP Boyd on Family Law]]

Changing Family Law Orders, Awards and Agreements Involving Spousal Support

2019-05-15T16:36:44Z

David Dundee: /* Remarriage */

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}An order for spousal support 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 jurisdiction, and changing agreements for spousal support.

==Changing interim orders for spousal support==

An ''interim order'' is a kind of temporary order that is made after a court proceeding has started but before the proceeding is finally resolved by a trial or settlement. 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 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 not to change interim orders on an interim basis; rather, they would prefer the parties go straight to trial. In the 1999 case ''[http://canlii.ca/t/1d1rl Hama v. Werbes]'', 1999 CanLII 5828 (BCSC), the Supreme Court said that interim order should only be varied on an interim basis when:

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

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 spouse 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 themselves 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.

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 they 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 their disposable income has decreased and the spousal support payments cannot be maintained.

The court’s attitude makes perfect sense, from its 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 evidence. 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 legislation, 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 act allows the court to vary these orders if there has been:

<blockquote><tt>... 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.</tt></blockquote>

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''.

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:

<blockquote><tt>(3) On application by a party, 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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in circumstances has occurred since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.</tt></blockquote></blockquote>
<blockquote><tt>(4) In making an order under subsection (3), the court must take into account all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the change in circumstances or the evidence, or both, referred to in subsection (3);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the length of time that has passed since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) would not necessarily reflect the final arrangement between the parties;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether a trial has been scheduled;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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).</tt></blockquote></blockquote>

Interim orders for spousal support under the ''Family Law Act'' can be made and varied by both the Provincial Court and the Supreme Court. 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 appeal, 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 judgment 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, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended only dismissing a claim with liberty to reapply in the event of a material change in circumstances.

Since the Gill-Sager case, the Court of Appeal has now clarified that, indeed, even a bald dismissal of spousal support can be revived if there has been a material change in circumstances: [http://canlii.ca/t/hrwn6 Sandy v Sandy], 2018 BCCA 182. Such cases may be rare, but they can happen – especially, say, if spousal support was dismissed only because the paying spouse could not afford to pay both child and spousal support, and the children are now grown up and no longer in need of child support.

===Changing an order granting support===

When a party seeks to vary a final order for spousal support, they 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 ''[http://canlii.ca/t/1f0dj 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 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:

<blockquote><tt>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.</tt></blockquote>

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

<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote>

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 proof comes to light or improper disclosure is discovered after the last hearing. In other words, you learn that the order was based on incorrect or misleading information.

====Changing reviewable orders for support====

''Reviewable orders'' for spousal support are orders that impose an obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:

<blockquote>"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."</blockquote>

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 negotiation, collaborative settlement processes, mediation, arbitration, 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 order'' 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 divorce 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 endorse 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 answer 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 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:

#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
#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 ''[http://canlii.ca/t/84l3 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 [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

The process under this act is as follows:

#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
#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 [http://www.isoforms.bc.ca 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 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 [[Family Law Agreements]] chapter.

===Family law agreements and contract law===

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 duress or coercion, 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 ''[http://canlii.ca/t/1g5lh 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:

<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote>
<blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote>
<blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote>
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote>

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:

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

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 amend, and the text of the agreement usually says something like this:

<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote>

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.

==Retirement==

Retirement will often constitute a material change in circumstances. For the paying spouse, it usually means less income is available to pay support. For the receiving spouse, it usually means less support is needed to supplement a retirement income. Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event. Under section 17 the ''[[Divorce Act]]'', you have to apply to vary on a material change in circumstances.

The danger lies in just assuming the court will vary spousal support when you retire. Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support. Why would this happen? Well, it depends on a few central considerations:
*First, does the paying spouse have to retire – mandatory retirement or it is medically necessary? In these circumstances, the court is most likely to grant some relief.
*Second, can the receiving spouse also retire? If he or she also has retirement income, perhaps spousal support is no longer necessary or appropriate. Such may be the case where, for example, the parties each have a pension, or the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.
*On the other hand, if the receiving spouse is not working and has not yet reached pensionable age under CPP, cutting off spousal support may leave him or her without adequate means of support. This can happen where, for example, the paying spouse wants to take early retirement. It can even happen where the paying spouse wants to retire at the usual age – 65 – but the receiving spouse is much younger. The paying spouse might have to retire later. The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire him- or herself.

In most cases, if retirement is an issue, the parties will be best off seeking to mediate a solution, or applying to court before they have made any irrevocable changes in their employment.

==Remarriage==

Similarly, there is a common assumption that support ends when the receiving spouse remarries or is living with a new common-law “spouse”. Certainly, this is often the case – but not always. Remarriage or re-partnering is often a material change in circumstances, but that is not the end of the analysis. Especially where, in granting the original order, the court found significant compensatory grounds for entitlement, the support obligation may be reduced, but not cancelled.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]

===Links===

* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}
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[[Category:JP Boyd on Family Law]]

Changing Family Law Orders, Awards and Agreements Involving Spousal Support

2019-05-15T16:36:01Z

David Dundee: change chapter ranking

{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}An order for spousal support 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 jurisdiction, and changing agreements for spousal support.

==Changing interim orders for spousal support==

An ''interim order'' is a kind of temporary order that is made after a court proceeding has started but before the proceeding is finally resolved by a trial or settlement. 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 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 not to change interim orders on an interim basis; rather, they would prefer the parties go straight to trial. In the 1999 case ''[http://canlii.ca/t/1d1rl Hama v. Werbes]'', 1999 CanLII 5828 (BCSC), the Supreme Court said that interim order should only be varied on an interim basis when:

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

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 spouse 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 themselves 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.

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 they 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 their disposable income has decreased and the spousal support payments cannot be maintained.

The court’s attitude makes perfect sense, from its 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 evidence. 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 legislation, 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 act allows the court to vary these orders if there has been:

<blockquote><tt>... 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.</tt></blockquote>

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''.

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:

<blockquote><tt>(3) On application by a party, 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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in circumstances has occurred since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.</tt></blockquote></blockquote>
<blockquote><tt>(4) In making an order under subsection (3), the court must take into account all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the change in circumstances or the evidence, or both, referred to in subsection (3);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the length of time that has passed since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) would not necessarily reflect the final arrangement between the parties;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether a trial has been scheduled;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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).</tt></blockquote></blockquote>

Interim orders for spousal support under the ''Family Law Act'' can be made and varied by both the Provincial Court and the Supreme Court. 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 appeal, 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 judgment 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, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended only dismissing a claim with liberty to reapply in the event of a material change in circumstances.

Since the Gill-Sager case, the Court of Appeal has now clarified that, indeed, even a bald dismissal of spousal support can be revived if there has been a material change in circumstances: [http://canlii.ca/t/hrwn6 Sandy v Sandy], 2018 BCCA 182. Such cases may be rare, but they can happen – especially, say, if spousal support was dismissed only because the paying spouse could not afford to pay both child and spousal support, and the children are now grown up and no longer in need of child support.

===Changing an order granting support===

When a party seeks to vary a final order for spousal support, they 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 ''[http://canlii.ca/t/1f0dj 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 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:

<blockquote><tt>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.</tt></blockquote>

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

<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote>

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 proof comes to light or improper disclosure is discovered after the last hearing. In other words, you learn that the order was based on incorrect or misleading information.

====Changing reviewable orders for support====

''Reviewable orders'' for spousal support are orders that impose an obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:

<blockquote>"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."</blockquote>

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 negotiation, collaborative settlement processes, mediation, arbitration, 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 order'' 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 divorce 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 endorse 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 answer 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 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:

#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
#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 ''[http://canlii.ca/t/84l3 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 [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

The process under this act is as follows:

#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
#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 [http://www.isoforms.bc.ca 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 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 [[Family Law Agreements]] chapter.

===Family law agreements and contract law===

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 duress or coercion, 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 ''[http://canlii.ca/t/1g5lh 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:

<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote>
<blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote>
<blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote>
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote>

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:

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

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 amend, and the text of the agreement usually says something like this:

<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote>

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.

==Retirement==

Retirement will often constitute a material change in circumstances. For the paying spouse, it usually means less income is available to pay support. For the receiving spouse, it usually means less support is needed to supplement a retirement income. Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event. Under section 17 the ''[[Divorce Act]]'', you have to apply to vary on a material change in circumstances.

The danger lies in just assuming the court will vary spousal support when you retire. Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support. Why would this happen? Well, it depends on a few central considerations:
*First, does the paying spouse have to retire – mandatory retirement or it is medically necessary? In these circumstances, the court is most likely to grant some relief.
*Second, can the receiving spouse also retire? If he or she also has retirement income, perhaps spousal support is no longer necessary or appropriate. Such may be the case where, for example, the parties each have a pension, or the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.
*On the other hand, if the receiving spouse is not working and has not yet reached pensionable age under CPP, cutting off spousal support may leave him or her without adequate means of support. This can happen where, for example, the paying spouse wants to take early retirement. It can even happen where the paying spouse wants to retire at the usual age – 65 – but the receiving spouse is much younger. The paying spouse might have to retire later. The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire him- or herself.

In most cases, if retirement is an issue, the parties will be best off seeking to mediate a solution, or applying to court before they have made any irrevocable changes in their employment.

===Remarriage===

Similarly, there is a common assumption that support ends when the receiving spouse remarries or is living with a new common-law “spouse”. Certainly, this is often the case – but not always. Remarriage or re-partnering is often a material change in circumstances, but that is not the end of the analysis. Especially where, in granting the original order, the court found significant compensatory grounds for entitlement, the support obligation may be reduced, but not cancelled.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]

===Links===

* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}
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[[Category:JP Boyd on Family Law]]

File:Ddundee.png

2013-06-14T22:42:37Z

David Dundee:

David Dundee

2013-06-14T22:39:03Z

David Dundee: Created page with "<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor | bio = '''David C. Dundee''' is a senior subject editor for ''JP Boyd on Family Law'', and..."

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''David C. Dundee''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Spousal Support]]. David is a lawyer and mediator with Paul & Company in Kamloops. David received a Bachelor of Arts degree in Honours English in 1978 and a Bachelor of Laws degree in 1981, both from the University of British Columbia. He was called to the bar in 1982. He has practised family law for most of his career, and has focused primarily on family law since he came to Kamloops. He became a family law mediator in 1988.

In 2012 David was awarded the President’s Medal in part for his work with the Law Society of BC's Best Practice Guidelines for family law. He has been extensively involved with the Canadian Bar Association for many years in many capacities: as chair or co-chair of the Kamloops Family Law Section since 2001; as member of the CBA National Family Section since 2008; and currently as an officer of that section.

As acting chair of the Family Law Working Group since 2007, he was involved with submissions to government on the new Family Law Act, and was invited by the Justice Ministry to participate in their family practice advisory group, which consulted on the new Family Law Act. David has also been active with the BC Continuing Legal Education Society for many years, having presented and written on several subjects, including as contributing editor to the Family Practice Manual and to their transition guide to the new Act.

| name = David C. Dundee
| image = [[image:ddundee.png|150px|left|link=|David Dundee]]
| organization = Paul & Company
| website = [http://www.kamloopslaw.com www.kamloopslaw.com]
}}

<noinclude>
[[Category:Contributor Bio|Dundee]]
[[Category:JP Boyd on Family Law Contributors|Dundee]]
</noinclude>