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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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<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> | ||
This | 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 | *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 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. | *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. | ||
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From the point of view of the spouse paying support, the ''payor'', a compelling change might be: | 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 | *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 | *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 | 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. | 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. | ||
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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 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. | 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, | 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=== | ||
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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. | 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 | 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. | 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. | ||
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===Changing an order granting support=== | ===Changing an order granting support=== | ||
When a party seeks to vary a final order for spousal 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: | Section 17(4.1) of the ''[[Divorce Act]]'' says this on the subject: | ||
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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: | 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 | <blockquote>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. | <blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</blockquote> | ||
An amending agreement can also: | An amending agreement can also: | ||
