Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Spousal Support"
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|resourcetype = <br/> a fact sheet on | |resourcetype = <br/> a fact sheet on | ||
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>a final order] | |link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>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, by an 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 | 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. | 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. | ||
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==Changing interim orders 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 order | 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 to | 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> | <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> | ||
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*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. | *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. | ||
If the court agrees and varies the interim order, 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 | 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. | ||
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''=== | ===The ''Divorce Act''=== | ||
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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 | 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''. | 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. | |||
===Changing an order granting support=== | ===Changing an order granting support=== | ||
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====Changing reviewable orders for support==== | ====Changing reviewable orders for support==== | ||
''Reviewable | ''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> | <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. | 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. | ||
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====Changing consent orders for support==== | ====Changing consent orders for support==== | ||
A ''consent order'' is an order that the parties agree the court should make. | 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== | ==Orders made outside of British Columbia== | ||
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All of these arguments are based on the law of contracts, not on a particular piece of legislation. | 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. | If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under s. 15.2 of the ''Divorce Act'' or s. 165 of the ''Family Law Act''. This application will be treated in the same way that all other applications for support are treated. | ||
===Agreements for spousal support and the ''Divorce Act''=== | |||
In the 2003 case of ''Miglin v. Miglin'', 2003 SCC 24, the Supreme Court of Canada decided that the material change test shouldn't apply to changing agreements and described a three-step test to be used when deciding whether a change is warranted: | |||
*Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power? | |||
*If the circumstances that the agreement was entered into were reasonable, the court must consider whether the agreement met the objectives for spousal support set out in s. 15.2 of the ''Divorce Act'' at the time it was made. | |||
*If the agreement did meet the objectives set out in the ''Divorce Act'', does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the ''Divorce Act''? | |||
If the court can answer all three questions “yes”, then the agreement survives. But if the answer to any of the three is “no”, then the court may make an order different from the agreement. | |||
===Agreements for spousal support and the ''Family Law Act''=== | ===Agreements for spousal support and the ''Family Law Act''=== | ||
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{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[David Dundee]], March 26, 2015}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
{{Creative Commons for JP Boyd}} | {{Creative Commons for JP Boyd}} | ||
[[Category:JP Boyd on Family Law]] | [[Category:JP Boyd on Family Law]] | ||