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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)
Revision as of 20:27, 26 June 2019
, 20:27, 26 June 2019→Changing interim orders for spousal support
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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. | 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 | 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 orders 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 their 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 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 | 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 may be 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. | ||
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. | 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 on the basis that they would 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. | 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. | ||
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<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> | <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 | 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 process for making interim applications in Supreme Court is described in the chapter [[Resolving Problems in Court]] within the section [[Interim Applications]]. | ||
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===The ''Family Law Act''=== | ===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: | 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><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> | ||
