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Changing Orders in Family Matters: Difference between revisions
From Clicklaw Wikibooks
→Spousal Support
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==Spousal Support== | ==Spousal Support== | ||
A final order for spousal support is an order made following the trial of a court proceeding or made by the consent 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 a court proceeding and can't be changed. This rule applies whether the order requires the payment of spousal support or rejects a party's claim for spousal support. | |||
In general, a final order is just that, final. Without an appeal, the final order represents the end of | |||
===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 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 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. | ||
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. | |||
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. | |||
===Changing an Order Allowing Support=== | |||
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 provides, in part, as follows: | Section 17 of the Divorce Act provides, in part, as follows: | ||
