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

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


The test used to decide if an obligation to pay spousal support should change depends on whether the the obligation exists because of a court order or an agreement. Whichever test is used, there must usually be a good reason why a change is needed and there must have been a significant change in at least one party's financial circumstances before a spousal support obligation will be changed.
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, by an order. The test the courts use to decide if an obligation to pay spousal support should change depends on whether the obligation exists because of an order or an agreement. Whichever test is used, there must usually be a good reason why a change is necessary.


This chapter will review changing interim orders for spousal support, changing the different kinds of final orders for support, changing orders that were made in a different jurisdiction and changing the spousal support provisions of family agreements.
This page talks about changing interim orders and final order for spousal support, changing orders that were made in a different jurisdiction and changing agreements for spousal support.


I. Changing Interim Orders for Spousal Support
==Changing Interim Orders for Spousal Support==


An "interim order" is a kind of temporary order that is made after an action has started but before the action is finally decided at a trial. Changing an order is called "varying" an order.
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 order is called ''varying'' an order.


The Court of Appeal for British Columbia 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 the application and a party's entitlement to support. As such, the courts often prefer to allow an interim order to stand, and an applicant seeking to vary the interim order cannot expect to just walk into court and have the issue heard again; there must be a very good reason why a change in the interim order is required. In the 1999 case Hama v. Werbes, the Supreme Court of British Columbia said that interim order should only be varied 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 to allow interim orders to stand when someone wants to change them, and someone asking to vary an interim order cannot expect to just walk into court and have the issue heard again; there must be a good reason why a change in the interim order is required. In the 1999 case ''Hama v. Werbes'', the Supreme Court said that interim order should only be varied when:


"there is a compelling change in circumstances, such that one or both of the parties would be seriously prejudiced by waiting until trial."
<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, also called a "material change," must be serious in nature 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, a material change might be:


a loss of supplementary income, such as employment income or WCB benefits, without which the recipient cannot support him- or herself on the amount of spousal support presently being paid;
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:
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 material change might be:


a loss of income, or an unexpected but long-lasting drop in income, such that he or she can no longer afford to make the spousal support payments; or,
#a loss of supplementary income, such as employment income or WCB benefits, without which the recipient cannot support him- or herself on the amount of spousal support presently being paid;
an unexpected increase in the payor's child care or child support obligations, such that his or her disposable income has decreased and the spousal support payments cannot be maintained.
#an unexpected increase in expenses, such that the amount of spousal support being paid becomes inadequate; or,
If the court agrees and varies the interim order, the new order will also be made on an interim basis, 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 again by another interim order.
#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.


A. The Family Relations Act
From the point of view of the spouse paying support, the ''payor'', a compelling change might be:
Spousal support can be awarded under s. 93(1)(b) of the provincial Family Relations Act. Section 9 of the act allows the court to make interim orders for spousal support and s. 20 allows the court to vary such orders.


Interim orders for spousal support under the Family Relations Act can be made in either the Provincial (Family) Court or in the Supreme Court. Provincial Court interim orders cannot be varied except by the Supreme Court. The Supreme Court can vary its own interim orders.
#a loss of income, or an unexpected but long-lasting drop in income, such that he or she 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 his or her disposable income has decreased and the spousal support payments cannot be maintained.


Applications to vary Provincial Court and Supreme Court interim orders are brought by filing a court form called a Notice of Motion. The process for making an interim application is described in the chapter The Legal System > Interim Applications.
If the court agrees and varies the interim order, 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.


B. The Divorce Act
===The ''Divorce Act''===
Interim spousal support can be awarded under s. 15.2(2) of the federal Divorce Act. Section 17 of the act allows the court to vary interim support orders.


Only the Supreme Court can make or vary orders under the Divorce Act. Applications to vary interim orders are brought by filing a court form called a Notice of Motion. The process for making an interim application is described in the chapter The Legal System > Interim Applications.
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 gas been:


Back to the top of this chapter.
<blockquote><tt>... 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>


II. Changing Final Orders for Spousal Support
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'', and the process for making interim applications is described in the ________ page.
 
==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:
 
<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><blockquote><tt>(a) a change in circumstances has occurred since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.</tt></blockquote></blockquote>
<blockquote><tt>(4) In making an order under subsection (3), the court must take into account all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the change in circumstances or the evidence, or both, referred to in subsection (3);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the length of time that has passed since the interim order was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) would not necessarily reflect the final arrangement between the parties;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether a trial has been scheduled;</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 or in 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 order are made by filing a court form called a Notice of Motion.
 
and Supreme Court interim orders are brought by filing a court form called a Notice of Motion. The process for making an interim application is described in the chapter The Legal System > Interim Applications.
 
 
==Changing Final Orders for Spousal Support==


A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.
A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.
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In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.
In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.


A. Changing an Order Refusing Support
===Changing an Order Refusing Support===
 
It used to be the case that a claim for spousal support which was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for someone in financial need.
It used to be the case that a claim for spousal support which was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for someone in financial need.


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A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in his or her financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a debilitating illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.
A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in his or her financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a debilitating illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.


B. Changing an Order Granting Support
===Changing an Order Granting Support===
 
When a party seeks to vary a final order for spousal support, he or she must show that there has been a "material change" in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of T. (T.L.A.) v. T. (W.W.), the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of G. (L.) v. B. (G.), the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made.
When a party seeks to vary a final order for spousal support, he or she must show that there has been a "material change" in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of T. (T.L.A.) v. T. (W.W.), the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of G. (L.) v. B. (G.), the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made.


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Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.
Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.


1. Changing Reviewable Orders for Support
====Changing Reviewable Orders for Support====
 
"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:
"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:


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There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.
There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.


2. Changing Consent Orders for Support
====Changing Consent Orders for Support====
 
A "consent order" is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future.
A "consent order" is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future.


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In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.


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==Orders Made Outside of British Columbia==
 
III. 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 must give a high amount of respect to the jurisdiction of the court that made the original order. There 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 is not always very easy to change an order that was made outside the province because the courts of our province must give a high amount of respect to the jurisdiction of the court that made the original order. There 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.
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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.
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.


A. Divorce Act Orders
===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:
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:


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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 chose 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.
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 chose 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.


B. Other Orders
===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 following this process under the Interjurisdictional Support Orders Act are called "reciprocating jurisdictions."
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 following this process under the Interjurisdictional Support Orders Act are called "reciprocating jurisdictions."


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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.
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.


Back to the top of this chapter.
==Changing Agreements for Spousal Support==


IV. Changing Agreements for Spousal Support
People can reach an agreement that spousal support will be paid outside the court process. Usually they will agree to pay support in a separation agreement, but marriage 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 Agreements section.


People can reach an agreement that spousal support will be paid outside the court process. Usually they will agree to pay support in a separation agreement, but marriage 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 Agreements section.
===Family Law Agreements and Contract Law===


A. 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 Family Relations Act and the Divorce Act. This is because a couple's private agreement on spousal support doesn't oust the independent jurisdiction of the court to make an order for support under the Divorce Act and the Family Relations Act.
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 Family Relations Act and the Divorce Act. This is because a couple's private agreement on spousal support doesn't oust the independent jurisdiction of the court to make an order for support under the Divorce Act and the Family Relations Act.


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After contract law has been used to challenge the agreement, the court will use the Divorce Act or the Family Relations Act to decide whether someone is entitled to receive support and, if so, how much support should be paid.
After contract law has been used to challenge the agreement, the court will use the Divorce Act or the Family Relations Act to decide whether someone is entitled to receive support and, if so, how much support should be paid.


B. Applications for Spousal Support
===Applications for Spousal Support===
 
If the court decides that an agreement is unfair, the person seeking support must convince the court that it should make an order for spousal support. This application will be treated in the same way that all other applications for support are treated. See the chapter Spousal Support > Basic Principles for more information.
If the court decides that an agreement is unfair, the person seeking support must convince the court that it should make an order for spousal support. This application will be treated in the same way that all other applications for support are treated. See the chapter Spousal Support > Basic Principles for more information.


If the court makes an order for spousal support, the order will supersede the agreement. The order can be filed with the Family Maintenance Enforcement Program if it needs to be enforced.
If the court makes an order for spousal support, the order will supersede the agreement. The order can be filed with the Family Maintenance Enforcement Program if it needs to be enforced.


C. Amending the Agreement
===Amending the Agreement===
 
It may be possible to avoid court altogether if the parties are willing to amend the part of the agreement which deals with spousal support. All things considered, this is a much cheaper, less aggressive and less confrontational way of dealing with the problem. It may well be that the payor is willing to agree to continue paying support or that recipient is willing to agree to a reduction in the amount of support paid.
It may be possible to avoid court altogether if the parties are willing to amend the part of the agreement which deals with spousal support. All things considered, this is a much cheaper, less aggressive and less confrontational way of dealing with the problem. It may well be that the payor is willing to agree to continue paying support or that recipient is willing to agree to a reduction in the amount of support paid.


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