Making Changes to Spousal Support

From Clicklaw Wikibooks

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, can be set aside by the court and replaced with an order.

The test the courts use varies depending on whether it is an order or agreement the court is changing, or, in the case of an order, whether it is an interim or 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 Hama v. Werbes, 1999 CanLII 5828 (BCSC), the Supreme Court said that interim order 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 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 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.

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, 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 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.

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.

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.

If the court agrees and varies the 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 spousal support can be awarded under s. 15.2(2) of the federal Divorce Act. Section 17(4.1) of the act allows the court to 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. 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 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:

(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.

Applications to vary Provincial Court orders are made by filing a court form called a Notice of Motion. Supreme Court orders are varied by filing a Notice of Application.

The process for making interim applications is described in the chapter Resolving Problems in Court within the section Interim Applications.

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.

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, 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.

Since the Gill-Sager case, it has become a little clearer that a dismissal of spousal support may not be a dismissal once and for all time. Nonetheless, prudent lawyers acting for recipient spouses still prefer the Gill-Sager approach, just to be on the safe side.


Changing an order granting 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 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:

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 agree 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 an order, when new evidence or proof comes to light or improper disclosure is discovered after the last hearing. In other words, 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 2012, and continuing on the first day of each and every month thereafter, subject to a review by either on or after 1 June 2015."

The main feature about a reviewable order is that the parties do not have to establish a material change in circumstances before the review proceeds. Because of this, however, courts prefer that reviewable orders specify what is to be reviewed, and why. Otherwise, the court has to consider the question entirely afresh, without any baselines or guidance from the first order. This includes whether 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 party is proceeding with the review, the old order continues to be in effect.

A review of spousal support can be handled through negotiation, collaborative settlement processes, mediation, arbitration, or in court. If the one of the parties applies to court for the review, the court will hear the matter de novo, a fresh hearing as if the question of spousal support was being determined 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. Sometimes, judges review the proposed terms and decide for themselves whether the order is appropriate – such as for divorce orders or orders concerning children. Other times, where the order concerns matters that affect only the two parties consenting – such as property division or spousal support – judges are content to simply endorse whatever the parties have agreed for themselves. In other words, a consent order is a kind of a hybrid, containing elements both of private agreement as well as judicial oversight or decision-making. Sometimes the former is more predominant; sometimes the latter.

As such, there has always been this question. Is the test for changing such an order the usual test for changing court orders generally, or is the appropriate test that which the court applies when making an order to replace an agreement? For a time, the second answer appeared to be the correct one. But in a case called L.M.P v L.S. 2011 SCC 64, the Supreme Court of Canada decided that, for cases under the Divorce Act at least, the first approach was the right one: 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?

Orders made outside of British Columbia

It is not always very easy to change an order that was made outside the province because the courts of our province give a great deal of respect to the judgment of the court that made the original order. There are a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat of it.

The process that will apply depends entirely on whether the original order was made under the federal Divorce Act or under the family law legislation of the jurisdiction whose court made the original order.

Divorce Act Orders

Orders that were made elsewhere in Canada under the federal Divorce Act can be changed here under s. 5 of the act, as long as both parties live in British Columbia. Where one party still lives in the province whose courts made the original order, a party living in BC can apply to change the original order using a process described in ss. 18 and 19 of the act:

  1. the person making the application, the applicant, applies here for a provisional order changing the original order,
  2. the court sends the provisional order to the court that made the original order, and
  3. on notice to the other party, the original court holds a hearing to confirm the provisional order.

This process requires two hearings: one here in British Columbia for a provisional order, and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may choose to send the order back to BC for more information. Until the provisional order is confirmed, it has no effect and the original order will continue to be the operative order.

Other orders

Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial Interjurisdictional Support Orders Act. Governments that have agreed to follow this process under the Interjurisdictional Support Orders Act are called reciprocating jurisdictions.

The countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act include: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand and Barbados. The official list of jurisdictions is contained in the Interjurisdictional Support Orders Regulation.

The process under this act is as follows:

  1. the applicant completes a bunch of forms provided by the provincial reciprocals office,
  2. our reciprocals office sends the forms to the court that made the original order, and
  3. on notice of the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order.

Under this process, there is only one hearing, and that hearing is held by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants, and may send the application back to British Columbia for more information. The original order will continue in effect until the court in the reciprocating jurisdiction varies it.

This new process is intended to simplify things, by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and those of the reciprocating jurisdiction. As a result, applications under the Interjurisdictional Support Orders Act can take a long time to process.

Contact details for the British Columbia Reciprocals Office, along with the forms required by the Interjurisdictional Support Orders Act, can be found at www.isoforms.bc.ca.

To vary an order of a country that does not participate in Interjurisdictional Support Orders Act applications, you will have to apply to vary the order in that country.

Changing agreements for spousal support

People can reach 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. 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 oust the authority of the court to make an order for support under the Divorce Act.

However, the court will usually give considerable weight to family law agreements and will prefer to make an order that reflects the terms of an agreement. 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 importance the court will usually give to an agreement, it can sometimes be necessary to attack the agreement itself under the law that applies to contacts. An agreement might be found to be invalid for one or more of the following reasons:

  • one of the parties was forced to enter into the agreement,
  • one party 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 party lied to the other party or hid information from that party, 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 s. 15.2 of the Divorce Act or s. 165 of the Family Law Act. This application will be treated in the same way that all other applications for support are treated.

Agreements for spousal support and the Divorce Act

In the 2003 case of Miglin v. Miglin, 2003 SCC 24, 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, that is, was there an equality of bargaining power?
  • If the circumstances that the agreement was entered into were reasonable, the court must consider whether the agreement met the objectives for spousal support set out in s. 15.2 of the Divorce Act at the time it was made.
  • If the agreement did meet 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 survives. But if the answer to any of the three is “no”, then the court may make an order 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 s. 165(3), the court cannot make an order for spousal support if there is an agreement on spousal support, including an agreement that support not be paid, until the agreement is set aside. Second, under s. 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 s. 164(3), the court must look at the situation of the parties when they were negotiating and executing the agreement. Like in the Miglin case, discussed above, the court is required to consider whether these circumstances existed when the parties were making 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 parties' negotiations.

Now, even if there are no issues with an agreement under s. 164(3), the second test, at s. 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 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 s. 165 of the Family Law Act. This application will be treated in the same way that all other applications for 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 support, or that the recipient is willing to agree to a reduction in the amount of support paid.

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:

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:

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.


Resources and links

Legislation

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This information applies to British Columbia, Canada. Last reviewed for legal accuracy by David Dundee and Gillian Oliver, June 9, 2017.
Creativecommonssmall.png 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.
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