Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Spousal Support"

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|resourcetype = <br/> a fact sheet on  
|resourcetype = <br/> a fact sheet on  
|link        = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>a final order]  
|link        = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>a final order]  
}}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.  
}}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 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.
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.
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.
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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 orders should only be varied on an interim basis when:
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 [http://canlii.ca/t/1d1rl Hama v. Werbes], 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>


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:
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,
*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 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.
*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:
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
*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.
*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 evidenceBut 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.
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), belowThere are no similar provisions in the ''[[Divorce Act]]'', but courts are sometimes influenced in how they read one law by changes in another.  


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.
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.
 
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.
 
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''===
===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:
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:


<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 Notice of Application.
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]] within the section [[Interim Applications]].
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''===
===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:
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:


<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>
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<blockquote><blockquote><tt>(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).</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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).</tt></blockquote></blockquote>


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.
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.  


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]], in the section [[Interim Applications]].
 
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==
==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.
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.
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.
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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.
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, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, 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 only dismissing a claim with liberty to reapply in the event of a material change in circumstances.
A 2003 case from the Court of Appeal, [http://canlii.ca/t/5cdj 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; indeed, even a bald dismissal of spousal support can be revived if there has been a material change in circumstances: [http://canlii.ca/t/hrwn6 ''Sandy v. Sandy''], 2018 BCCA 182. Such cases may be rare, but they can happen especially, say, 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.
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 [http://canlii.ca/t/hrwn6 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===
===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 ''[http://canlii.ca/t/1f0dj 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.
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 [http://canlii.ca/t/1f0dj 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:
Section 17(4.1) of the ''[[Divorce Act]]'' says this on the subject:


<blockquote><tt>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>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>
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<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</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>


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.
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====
====Changing reviewable orders for support====
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''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:
''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:


<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 by either on or after 1 June 2015."</blockquote>
<blockquote>"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."</blockquote>


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.
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 party is proceeding with the review, the old order continues to be in effect.
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 in court. If 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.
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====
====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 to themselves.  In other words, a consent order is a kind of hybrid, containing elements both of private agreement as well as judicial oversight or decision-making.  Sometimes the former is more predominant; sometimes the latter.
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 [https://canlii.ca/t/fpddd 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.
 
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==
==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.
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 ''[http://canlii.ca/t/84l3 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.


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.
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.  


===''Divorce Act'' Orders===
===Orders under the ''Divorce Act''===


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:
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:  


#the person making the application, the ''applicant'', applies here for a ''provisional'' order changing the original order,
#Submit an application to the [http://www.isoforms.bc.ca British Columbia Reciprocals Office], using the forms supplied by the office.
#the court sends the provisional order to the court that made the original order, and
#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.
#on notice to the other party, the original court holds a hearing to ''confirm'' the provisional order.
#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.  


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.
In this process, there is only one hearing, and the hearing takes place in the province where the other spouse lives.  


===Other orders===
It's important to know that the original order will continue in effect until and unless the court changes the order.


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 ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Governments that have agreed to follow this process under the ''Interjurisdictional Support Orders Act'' are called ''reciprocating jurisdictions''.
===Orders made under other laws===


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 [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].
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:


The process under this act is as follows:
* 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


#the applicant completes a bunch of forms provided by the provincial reciprocals office,
See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.
#our reciprocals office sends the forms to the court that made the original order, and
#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.
Here are the steps involved in this process:


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.
#Submit an application to the [http://www.isoforms.bc.ca 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.  


Contact details for the British Columbia Reciprocals Office, along with the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].
Under this process, there is only one hearing and the hearing is heard by the court where the other spouse lives.  


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.
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==
==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.
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 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''.
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 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.
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 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 contracts. An agreement might be found to be invalid for one or more of the following reasons:
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 parties was forced to enter into the agreement,
*one of the spouses 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,
*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
*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.
*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.  
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.
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''===
===Agreements for spousal support and the ''Divorce Act''===


In the 2003 case of ''[http://canlii.ca/t/1g5lh 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:
In the 2003 case of [http://canlii.ca/t/1g5lh 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, 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.
#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''===
===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.
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 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:
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:


<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote>
<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote>
Line 199: Line 199:
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote>
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote>


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.
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 s. 164(3), the second test, at s. 164(5), allows the court to set aside agreements that are "significantly unfair" taking into <span class="noglossary">account</span>:
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 <span class="noglossary">account</span>:


<blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote>
<blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote>
Line 209: Line 209:
<blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote>
<blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote>


Section 161, mentioned in subsection (e), is the part of the act that sets out the objectives of spousal support.
(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 s. 165 of the ''Family Law Act''. This application will be treated in the same way that all other applications for support are treated.
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===
===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.
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. 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:
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:


<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote>
<blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote>


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*impose a new obligation to pay support.
*impose a new obligation to pay support.


==Retirement==
==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.


Retirement will often constitute a material change in circumstances. For the paying spouse, it usually means less income is available to pay support.  For the receiving spouse, it can mean less support is needed to supplement a retirement income. Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event.  Under section 17 of the ''[[Divorce Act]]'', you can apply to vary if you can show that retirement does in fact represent a material change in circumstances.  But applying to vary, or reviewing, is not the same as changing.
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:


The danger lies in just assuming the court will vary spousal support when you retire.  Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support.  Why would this happen?  Well, it depends on a few things:
*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.)
*First, does the paying spouse have to retire (i.e., mandatory retirement, or it is medically necessary)? In these circumstances, the court is most likely to grant some relief.
*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?
*Second, how would this affect the receiving spouse? Can they also retire? It is one thing if the receiving spouse still has a good job, or also has, or will have, retirement income.  In either event, perhaps spousal support is no longer necessary or appropriate.  Such may be the case where, for example, the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.
*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?
*On the other hand, if the receiving spouse is not working or cannot yet retire, or is otherwise still dependent on that spousal support cheque, cutting off support may leave them in trouble, financially.  This can happen where, for example, the paying spouse wants to take early retirement.  It can even happen where the paying spouse wants to retire at the usual age — 65 — but the receiving spouse is much younger.  The paying spouse might have to retire later.  The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire also.
*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?
*Finally, when the paying spouse retires, will they have other sources of income? Perhaps they have another job lined up, or intend to go into business for themselves.  This extra income will certainly affect the calculations.


If a pension has been divided, you should also check the order or agreement that divides it.  Sometimes, there are limitations on when the pension holder can take retirement.  Early retirement may not be allowed, for example, as it often results in less pension income — for both parties.
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.  


Also be wary of orders or agreements that say spousal support may be reviewed on the retirement of the paying spouse.  As noted above, reviewing is not the same as changing — and certainly not the same as terminating.
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.


In most cases, if retirement is an issue, the parties will be best advised to negotiate or mediate a solution, or to apply to court, ''before'' they have made any irrevocable changes in their employment.
==Spousal support and new partners or spouses==


==Remarriage==
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.


Similarly, there is a common assumption that support ends when the receiving spouse remarries or is living with a new common-law “spouse”. Certainly, this is often the case – but not always.  Remarriage or re-partnering is often a material change in circumstances, but that is not the end of the analysis.  Especially where, in granting the original order, the court found significant compensatory grounds for entitlement, the support obligation may be reduced, but not cancelled.
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.


<!---HIDDEN
<!---HIDDEN
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===Links===
===Links===


* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [https://clicklaw.bc.ca/resource/4645 Legal Aid BC's Family Law website's information page "Court orders"]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
**Under the section "Change an order or set aside an agreement made in BC"
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]




{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}
{{REVIEWED | reviewer = [[JP Boyd]], 29 June 2022}}
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{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]
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Latest revision as of 19:28, 22 November 2022

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:

  1. Submit an application to the British Columbia Reciprocals Office, using the forms supplied by the office.
  2. 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.
  3. The Reciprocals Office where the other spouse lives sends the application to the court in that province.
  4. 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.
  5. 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:

  1. Submit an application to the British Columbia Reciprocals Office, using the forms supplied by the office.
  2. 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.
  3. The Reciprocals Office where the other spouse lives sends the application to the court in that province or country.
  4. 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.
  5. 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:

  1. Was the agreement negotiated and entered into fairly? In other words, was there an equality of bargaining power?
  2. 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?
  3. 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

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 29 June 2022.
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