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

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Changing Family Law Orders, Awards and Agreements Involving Spousal Support (view source)

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==Changing Final Orders for Spousal Support==
==Changing Final Orders for Spousal Support==


A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.
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, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.
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===
===Changing an Order Refusing Support===


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


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''.


A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in his or her financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a debilitating illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.
===Changing an Order Granting Support===


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


When a party seeks to vary a final order for spousal support, he or she must show that there has been a "material change" in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of T. (T.L.A.) v. T. (W.W.), the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of G. (L.) v. B. (G.), the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made.
Section 17(4.1) of the ''Divorce Act'' says this on the subject:


Section 17 of the Divorce Act provides, in part, as follows:
<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>


(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
Section 167 of the ''Family Law Act'' says this:
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
Section 96(1) of the Family Relations Act states that:


If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
<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>
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.
<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>


Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.
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 of a lack of property disclosure is discovered after the last hearing.


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


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


"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
<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>
When the review date for an order for spousal support arrives, the payor's obligation to keep making the support payments does not end. At that time, it is usually open to both parties to make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation to pay support ended. The recipient, on the other hand, usually seeks to have the support maintained, and, sometimes, increased. If neither party makes an application to have the issue of spousal support re-evaluated, the existing order continues to be in effect.


Once one of the parties make an application for the review of the order for spousal support, the issue is heard by the court as a hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first 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 end or reduce until the review is held. If neither party proceedings with the review, the old order continues to be in effect.


There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.
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====
====Changing Consent Orders for Support====


A "consent order" is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future.
A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future.
 
The test for changing consent orders for spousal support used to be the "material change" test, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of ''Miglin v. Miglin'', the Supreme Court of Canada decided that the material change test shouldn't apply to changing agreements and consent for support and described a three-step test to be used when deciding whether a change is warranted:


The test for changing consent orders for spousal support used to be the "material change" test, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:
*Was the order negotiated and entered into fairly, that is, was there an equality of bargaining power?
*If the circumstances that the order was entered into were reasonable, the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the ''Divorce Act'' at the time it was made.
*If the order did meet the objectives set out in the ''Divorce Act'', does the order 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''?


Was the order negotiated and entered into fairly, that is, was there an equality of bargaining power?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order 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 (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.


==Orders Made Outside of British Columbia==
==Orders Made Outside of British Columbia==
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