Changing Family Law Orders, Awards and Agreements Involving Spousal Support
An order for spousal support can be changed by another order. An agreement on spousal support can be changed by another agreement or, if the parties can't agree, be set aside by the court and replaced with an order about spousal support.
The test the courts use when deciding to change arrangements for spousal support depends on whether it is an order or agreement the court is being asked to change, or, in the case of an order, whether the order is an interim order or a final order. Whichever test is used, there must usually be a good reason why a change is necessary.
This section talks about changing interim orders and final orders for spousal support, changing orders that were made in a different jurisdiction, and changing agreements for spousal support.
Changing interim orders for spousal support
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 of Hama v. Werbes, the Supreme Court said that interim orders should only be varied on an interim basis when:
"...there is a compelling change in circumstances, such that one or both of the parties would be seriously prejudiced by waiting until trial."
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 other 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 child care obligations, for example, because of the extended illness of a child or the birth of a new child, such that the spousal support paid is no longer adequate.
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 they can no longer afford to make the spousal support payments ordered, or
- 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 Family Law Act is intended to expand the range of circumstances in which an interim change of an interim order might be allowed; read about sections 216(3) and (4), below. There are no similar provisions in the Divorce Act, but courts are sometimes influenced in how they read one law by changes in another.
If the court agrees and changes an interim order before trial, the new order will also be an interim order and will remain in effect until the issue of spousal support is determined by a final order following trial or a settlement... or until it is varied by another interim order.
The Divorce Act
Interim orders for spousal support can be made under section 15.2(2) of the federal Divorce Act. Section 17(4.1) of the act allows the court to change, or vary, these orders if there has been:
... 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.
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.
The process for making interim applications in Supreme Court is described in the chapter Resolving Problems in Court, in the section Interim Applications.
The Family Law Act
Orders for spousal support can be made under section 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 section 216(3) and (4), the court can also vary such orders:
(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:
(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.
(4) In making an order under subsection (3), the court must take into account all of the following:
(a) the change in circumstances or the evidence, or both, referred to in subsection (3);
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled;
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).
Interim orders for spousal support under the Family Law Act can be made and varied by both the Provincial Court and the Supreme Court. Only the Provincial Court may vary Provincial Court orders and only the Supreme Court may vary Supreme Court orders. The Family Law Act applies to married spouses and unmarried spouses.
The process for making interim applications is described in the chapter Resolving Problems in Court, in the section Interim Applications.
Changing final orders for spousal support
A final order for spousal support is an order made following a trial or made by the agreement of the parties as a settlement of a court proceeding. Changing an order is called varying an order.
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
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, Gill-Sager v. Sager, called into question just how "final" final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended that final orders should only dismiss claims for spousal support with liberty to for the spouse asking for spousal support apply again for spousal support in the event of a material change in circumstances.
Since the Gill-Sager case, the Court of Appeal has now clarified that even a complete refusal of a spousal support claim can be revived if there has been a material change in circumstances, see the 2018 case of Sandy v. Sandy. While cases like these may be rare, they do happen, especially if spousal support was dismissed only because the paying spouse could not afford to pay both child and spousal support, and the children are now grown up and no longer in need of child support.
Changing an order granting support
When a party asks 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 spouses. 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:
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:
(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.
(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:
(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.
Although both the Divorce Act and the Family Law Act say 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 a final order about spousal support: when new evidence or proof comes to light; or, when improper disclosure is discovered after the last hearing. In other words, when you learn that the order was based on incorrect or misleading information.
Changing reviewable orders for support
Reviewable orders 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 2022, and continuing on the first day of each and every month thereafter, subject to a review by either on or after 1 June 2032."
The most important thing about reviewable orders is that the spouses do not have to establish a material change in circumstances before the review happens. Because of this, however, courts prefer that reviewable orders say exactly what is to be reviewed and why. Otherwise, the court has to reconsider the question of spousal support without any baselines or guidance from the first order, including whether spousal support should continue at all, or in what amount, or for what period of 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 not end or reduce until the review is held. If neither spouse is goes ahead with the review, the order continues to be in effect exactly as written.
A review of spousal support can be handled through negotiation, collaborative settlement processes, mediation, arbitration, or court. If one of the spouses applies to court for the review, the court will hear the matter de novo, as a fresh hearing, in other words, as if the question of spousal support was being decided for the first time. There is no need to establish a change in circumstances at a review hearing.
Changing consent orders for support
A consent order is an order that the parties agree the court should make. When someone applies to change a consent order, they need to prove, as the Supreme Court of Canada decided in a 2011 case called L.M.P v. L.S., that there been a material change in the means and needs of either spouse that, if known of at the time of the original order, would have resulted in a different order being made.
Orders made outside of British Columbia
It's not always easy to change an order made outside of British Columbia, mainly because the courts of this province don't have authority over the courts of other provinces, territories and countries. However, both the federal Divorce Act and the provincial Interjurisdictional Support Orders Act have special provisions about how orders for spousal support made elsewhere in Canada can be changed by someone living in British Columbia. The Interjurisdictional Support Orders Act also talks about how someone who lives here can ask to change spousal support orders made in countries which have agreements with British Columbia. Orders that were made in other countries can only be changed through an application in the court that made the original order. You should speak to a lawyer in that country to get more information about your options.
If you can change an order made outside of British Columbia, the process you'll use depends on whether the original order was made under the federal Divorce Act or under the legislation of the place whose courts made the original order. The processes are, however, very similar.
Orders under the Divorce Act
Orders that were made elsewhere in Canada under the Divorce Act can be changed here under section 5 of the act, as long as both spouses now live in British Columbia. If one or both of you live in other provinces, a person living in British Columbia can apply to change the original order using the process described in sections 18.1, 18.2 and 18.3. Here are the steps involved:
- Submit an application to the British Columbia Reciprocals Office, using the forms supplied by the office.
- The Reciprocals Office checks to make sure that your application is complete and sends it to the Reciprocals Office in the province where the other spouse now lives.
- The Reciprocals Office where the other spouse lives sends the application to the court in that province.
- If it the application is sent to a court, the court will serve the application on the other spouse, along with information about what they have to do to reply to your application.
- The court hears the application and may make an order changing the spouse support order, may ask for more evidence, or may dismiss the application.
In this process, there is only one hearing, and the hearing takes place in the province where the other spouse lives.
It's important to know that the original order will continue in effect until and unless the court changes the order.
Orders made under other laws
Every province in Canada has its own Interjurisdictional Support Orders Act and follows the same process. The countries that also follow the Interjurisdictional Support Orders Act process and have agreed to cooperate applications change spousal support orders are:
- United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands
- Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea
- Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland
- Caribbean — Barbados and its Dependencies
- Africa — South Africa, Zimbabwe
- Asia — Hong Kong, Republic of Singapore
See the Interjurisdictional Support Orders Regulation for the current list.
Here are the steps involved in this process:
- Submit an application to the British Columbia Reciprocals Office, using the forms supplied by the office.
- The Reciprocals Office checks to make sure that your application is complete and sends it to the corresponding organization in the province or country where the other spouse lives.
- The Reciprocals Office where the other spouse lives sends the application to the court in that province or country.
- The court will then serve the application on the other spouse, along with information about what they have to do to reply to your application.
- The court hears the application and may make an order changing the spousal support order, may ask for more evidence, or may dismiss the application.
Under this process, there is only one hearing and the hearing is heard by the court where the other spouse lives.
It's important to know that the original order will continue in effect until and unless the court changes the order.
Changing agreements for spousal support
People can make an agreement that spousal support will or will not be paid, without having to go to court. Usually a deal on spousal support is worked out in a separation agreement, but marriage agreements and cohabitation agreements can also talk about whether support will be payable when a relationship ends. Family law agreements are discussed in more detail in the Family Law Agreements chapter.
Family law agreements and contract law
Family law agreements are private contracts reached between two people, just like other kinds of contracts. While family law agreements can be attacked, and enforced, on the principles of contract law, the support provisions of an agreement can also be argued under the Divorce Act. This is because a couple's private agreement on spousal support doesn't prevent the court from making an order for support under the Divorce Act.
However, the court will usually give considerable deference to family law agreements and will prefer to make an order that reflects the terms of the agreement that the spouses reached for themselves. Without proof of something like duress or coercion, or some other problem, the court will treat the agreement as representing the honest and informed intentions of the parties to settle their dispute.
Because of the deference the court will usually give to an agreement, it can sometimes be necessary to attack the agreement itself under the law that applies to contracts. An agreement might be found to be invalid for one or more of the following reasons:
- one of the spouses was forced to enter into the agreement,
- one spouse was too much under the influence or control of the other party in consenting to the terms of the agreement,
- the agreement is fundamentally unfair, or
- one spouse lied to the other spouse or hid information from that spouse, and these misleading representations were the basis on which the agreement was executed.
All of these arguments are based on the law of contracts, not on a particular piece of legislation.
If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support under section 15.2 of the Divorce Act or section 165 of the Family Law Act. This application will be treated the same way that all other applications for spousal support are treated.
Agreements for spousal support and the Divorce Act
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 described a three-step test to be used when deciding whether a change is warranted:
- Was the agreement negotiated and entered into fairly? In other words, was there an equality of bargaining power?
- If the circumstances that the agreement was entered into were reasonable, did the agreement meet the objectives for spousal support set out in section 15.2 of the Divorce Act at the time it was made?
- If the agreement met the objectives set out in the Divorce Act, does the agreement 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?
If the court can answer all three questions “yes,” then the agreement will survive. But if the answer to any of the three is “no,” then the court may make an order about spousal support that is different from the agreement.
Agreements for spousal support and the Family Law Act
The Family Law Act provides some important rules about agreements dealing with spousal support. First, under section 165(3), the court cannot make an order for spousal support if there is an agreement on spousal support, including an agreement that support will not be paid, until the agreement is set aside. Second, under section 164, two tests are set out to help the court decide when an agreement on spousal support should be set aside.
Under the first test, at section 164(3), the court must look at the situation of the spouses when they were negotiating and signing their agreement. Like in the Miglin case, the court is required to consider whether any of these circumstances existed when the spouses made their agreement:
(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would under the common law cause all or part of a contract to be voidable.
The last part of this test, at subsection (d), is about whether there is a defect under the law of contracts that might make the agreement void or voidable. The other parts of the test are all about the fairness of the spouses' negotiations.
Now, even if there are no issues with an agreement under section 164(3), the second test, at section 164(5), allows the court to set aside agreements that are "significantly unfair" taking into account:
(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d) the degree to which the spouses relied on the terms of the agreement;
(e) the degree to which the agreement meets the objectives set out in section 161.
(Section 161, mentioned in subsection (e), is the part of the Family Law Act that sets out the objectives of spousal support.)
If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under section 165 of the Family Law Act. This application will be treated the same way that all other applications for spousal support are treated.
Amending the agreement
It may be possible to avoid court altogether if the spouses can agree about the new arrangements and are willing to change the part of the agreement that deals with spousal support. All things considered, this is a much cheaper and much less confrontational way of dealing with the problem. It may well be that the payor is willing to agree to continue or start paying spousal support, or that the recipient is willing to agree to a reduction in the amount of spousal support being paid.
Family law agreements are changed by executing another written agreement that updates the original agreement. Changing an agreement is called amending the agreement. These 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:
Frank and Manjeet agree that their separation agreement, executed on 1 January 2022, will be amended by cancelling Paragraph 12 of that agreement and replacing it with the following:
Neither party shall be entitled to receive spousal support from the other.
An amending agreement can also:
- reduce the amount someone must pay as spousal support,
- increase the amount payable as spousal support, or
- impose a new obligation to pay support.
Spousal support and retirement
The retirement of a spouse often qualifies as a material change in circumstances. For the payor, retirement usually means less income is available to pay spousal support. For the recipient, retirement can mean less support is needed to supplement the income they get from a pension or some other kind of retirement benefit. Section 169 of the Family Law Act allows for a review in either event. Under section 17 of the Divorce Act, you can apply to vary an order for spousal support if you can show that retirement does in fact represent a material change in circumstances.
It's important to know that the court will not automatically change a spousal support obligation just because you or your spouse have retired. Too many payors make this assumption, retire, and then are surprised when the court does not reduce support. Here are some of the questions the court will need answered before it does anything to change a spousal support obligation:
- Does the payor have no choice about retiring, for example, because of a mandatory retirement age, or a medically necessity? (In circumstances like these, the court is most likely to agree to change a spousal support obligation.)
- How would a change in spousal support affect the recipient? Can they also retire? Do they still have employment income? Do they have any retirement income of their own? Is spousal support still necessary?
- When the payor retires, will they have other sources of income? Do they have another job lined up, or are they intending on going into business for themselves?
- Are there pensions, RRSPs and other retirement savings that were divided when the spouses divided the family property? How will income from these assets affect the spouses' financial situations?
It's also important to know that in some cases the court has ordered that a spousal support obligation continue, despite the payor's decision to retire.
In most cases, if retirement is an issue, the spouses should try to negotiate or mediate a resolution, or to apply to court, before they have made any irrevocable changes in their employment.
Spousal support and new partners or spouses
People often assume that people receiving spousal support stop being entitled to receive support when they remarry or repartner. This may be the case when spousal support was agreed to or ordered on the basis of the recipient's needs. It is rarely the case when spousal support was agreed to or ordered for compensatory reasons.
When spousal support is agreed to or ordered because of the recipient's needs, the recipient's entitlement to receive support may end when their need for financial help ends, or lessens, because of the support they receive from a new spouse or partner. This is especially the case when the recipient lives with their new spouse or pattern, shares expenses with them, or receives financial assistance from them.
When spousal support is agreed to or ordered to compensate the recipient for the financial consequences of the decisions the spouses made during their relationship, the obligation to pay spousal support may not end until the recipient has been fully compensated. As a result, compensatory spousal support agreement and orders are a little sticky; the duty to pay can survive after the recipient gets a new job or a better-paying job, or if the recipient repartners or remarries. Payors cannot count on a change in the recipient's relationship status affecting their spousal support obligation.
Resources and links
- Family Law Act
- Divorce Act
- Interjurisdictional Support Orders Act
- Interjurisdictional Support Orders Regulation
- Ministry of Attorney General Interjurisdictional Support Services (BC reciprocals office)
- Legal Aid BC's Family Law website's information page "Court orders"
- Under the section "Change an order or set aside an agreement made in BC"
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 29 June 2022.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|