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Difference between revisions of "Changing Orders in Family Matters"

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Changing Orders in Family Matters (view source)

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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 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.


In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally'', in other words that it is not decided.
In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally'', in other words they should say that the issue is not decided.


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 serious, disabling 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.
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 serious, disabling 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.
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When a party seeks to vary a final order for spousal support made under the ''Divorce Act'', 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 made under the ''Divorce Act'', 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.


STOPPED...must add FLA test
Section 17 of the ''Divorce Act'' says this:


Section 17 of the Divorce Act provides, in part, as follows:
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></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'' is a bit broader and looks whether there is new evidence as well as a change in the circumstances of the recipient:
(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.
====Changing Reviewable Orders for Support====
 
''Reviewable'' orders for spousal support are orders that impose an duty to pay spousal support without a particular end date, 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, and this order may be reviewed on the application of either party on or after 1 June 2018."</blockquote>
 
Or, they might 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 upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>
 
Section 168 of the ''Family Law Act'' says this about reviewable orders:


====Changing Reviewable Orders for Support====
<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>


"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:
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 start negotiations or make an application about spousal support. The payor may wish to have the amount of support reduced or have his or her obligation 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.


"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."
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 fresh hearing of the issue, called a hearing ''de novo'', as if the question of spousal support were being determined for the first time. Section 168(2) says what can happen if the review is by way of a court hearing:
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.
<blockquote><tt>(2) On review, a court, on application, may do one or more of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) confirm an agreement or order respecting spousal support;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) make an order under section 165.</tt></blockquote></blockquote>


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.
There is no need to establish that one or both of the parties have had a material 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 an assumption 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 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:


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 the court must consider whether the order met the objectives for spousal support set out in the legislation at the time it was made.
#If the order did meet the objectives set out in the legislation, 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 legislation?


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 legislation.
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.


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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