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

The Court of Appeal has said that interim orders for spousal support are intended to be temporary, rough-and-ready decisions intended only to tide the parties over until a final order is made, rather than an exhaustive review of the merits of a claim for spousal support. As such, the courts often prefer 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:

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 him- or herself on the amount of spousal support presently being paid,

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

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

The court’s attitude makes perfect sense, from their point of view.  Judges would rather make decisions with the most information possible rather than having to make interim arrangements, time after time, on imperfect or incomplete 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.

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.

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:

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''.

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:

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''.  

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.

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. In this case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only ''adjourned'', so that it will always be open to a spouse to apply for spousal support later on even if the spouse wasn't awarded spousal support at trial

 

In practice this means that a final order should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''. Alternatively, the court can order that the claim for spousal support is dismissed, but with liberty to reapply in the event of a material change in circumstances.

 

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

When a party seeks to vary a final order for spousal support, he or she must show that there has been a ''material change'' in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[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:

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.

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.

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 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 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].

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:

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.

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

*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 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.

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:

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 <span class="noglossary">account</span>:

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.

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:

* [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]

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], June 9, 2017}}